Gallagher v. Hawaii Symphony Orchestra
Filing
32
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS COMPLAINT, ECF NO. 11 re 11 - Signed by JUDGE J. MICHAEL SEABRIGHT on 3/27/2024. For the foregoing reasons, the Motion to Dismiss, ECF No. 11, is GRANTED in part and DENIED in part. It is GRANTED in part as to certain retaliation allegations. And it is GRANTED as to Count V alleging punitive damages alone. It is DENIED in all other respects.(jni)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOHN P. GALLAGHER,
CIV. NO. 23-00395 JMS-RT
Plaintiff,
v.
HAWAII SYMPHONY ORCHESTRA;
AND DOES 1–20,
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANT’S MOTION TO
DISMISS COMPLAINT, ECF NO.
11
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION TO DISMISS COMPLAINT, ECF NO. 11
I. INTRODUCTION
Defendant Hawaii Symphony Orchestra (“Defendant” or “the HSO”)
moves to dismiss Plaintiff John P. Gallagher’s (“Plaintiff” or “Gallagher”)
Complaint alleging religious discrimination in violation of federal and Hawaii law
based on the HSO’s placement of Gallagher on indefinite unpaid leave after he
refused to vaccinate against the SARS-CoV-2 virus in 2021, and after requesting
an exemption. See ECF No. 11.
The HSO originally based its Motion to Dismiss on both a lack of
subject-matter jurisdiction and failure to state claims. As explained later, however,
the HSO withdrew its lack of subject-matter jurisdiction argument after the court
requested supplemental briefing. The court thus focuses on whether Gallagher’s
Complaint states plausible claims for relief. Based on the following, the Motion to
Dismiss is GRANTED in part and DENIED in part.
II. BACKGROUND
A.
Factual Background
The court assumes the following relevant allegations of the Complaint
are true for purposes of this Motion to Dismiss. See, e.g., Steinle v. City & Cnty. of
S.F., 919 F.3d 1154, 1158 n.1 (9th Cir. 2019).
1.
The 2021 COVID-19 Vaccine Mandate
Gallagher “is a world-class bassist who for over twenty five years . . .
has been a loyal, core member of HSO, having started his career in 1997.” ECF
No. 1 at PageID.4. 1 He is Catholic. Id. On August 11, 2021, Gallagher signed a
contract witsh the HSO for the 2021 to 2022 season. Id. at PageID.5. He has been
a member of the Musicians’ Association of Hawaii, Local 677, American Federal
of Musicians (“Local 677” or “the Union”) since 1991. Id. at PageID.6 n.2. All
musicians in the HSO are members of Local 677. Id. 2
1
In a symphony orchestra, a bass, or double bass, is a “stringed musical instrument, the
lowest-pitched member of the violin family, sounding an octave lower than the cello.” Double
Bass, Britannica, https://www.britannica.com/art/double-bass [https://perma.cc/P9DR-MXJU].
2
As discussed later, the court incorporates by reference the 2018–2020 Master
Agreement between the HSO and Local 677, and related documents (collectively “the Collective
Bargaining Agreement” or “the CBA”). See ECF Nos. 11-4, 11-7 and 11-8.
2
On or about October 22, 2021, the HSO “imposed a new term of
employment on its musicians.” Id. at PageID.5. The new term was a COVID-19
vaccine mandate, requiring “HSO musicians to be fully vaccinated for COVID-19,
unless they have an approved exemption.” Id. This “vaccine mandate” was
negotiated between the HSO and Local 677 in light of the worldwide COVID-19
pandemic that began in 2020. The mandate was announced on October 22, 2021,
and it became effective on October 25, 2021. Id. at PageID.6; ECF No. 11-4 at
PageID.68; ECF No. 11-9 at PageID.200. The court refers to the HSO’s vaccine
mandate, which is essentially an addendum to the CBA, as the CBA’s “COVID-19
Protocols” or “the Protocols.”3 In relevant part, the Protocols provided as follows:
Mandatory Vaccination:
All HSO musicians, staff, contractors, and volunteers are
required to be fully vaccinated for COVID-19, unless
they have an approved exemption. “Fully vaccinated”
means at least two weeks have passed since receiving the
second shot in a two-shot series or the single shot in a
one-shot series of a vaccine for COVID-19, which has
been authorized by the U.S. Food and Drug
Administration (FDA).
The HSO is providing a grace period to allow individuals
time to be fully vaccinated. By December 10, 2021, all
individuals must provide either proof of full vaccination
or an approved exemption request. Employees in need of
an exemption from this policy due to a medical reason, or
because of a sincerely held religious belief, must submit
3
Also as discussed later, the court incorporates the Protocols into the Complaint by
reference. See ECF Nos. 11-4 and 11-9.
3
a completed Request for Exemption Form to the
Personnel Manager (PM) by October 29, 2021.
....
After December 10, 2021, any individual who has chosen
not to be fully vaccinated or has not been approved for an
exemption will be placed on leave without pay status but
will retain their medical and instrument insurance
through July 3, 2022. They may be permitted to return to
work once these protocols are lifted, or they are in
compliance with the protocols on a rolling basis; January
10, 2022, February 22, 2022, or May 16, 2022.
....
Exemptions:
Individuals who have received an exemption or who have
not yet received a response from a timely application
must provide a negative PCR COVID-19 test date
stamped no longer than 48 hours before each entry at the
HSO Office, Hawaii Theatre Center, Blaisdell Concert
Hall, or all other venues the HSO is utilizing in an
official capacity. See the testing provision below. If an
individual with an exemption who can play their
instrument while wearing a face mask, refuses to be
tested, they will be placed on leave without pay status but
will retain their medical and instrument insurance
through July 3, 2022. They may be permitted to return to
work once these protocols are lifted, or they are in
compliance with the protocols on a rolling basis; January
10, 2022, February 22, 2022, or May 16, 2022.
Individuals with an exemption that must remove their
face mask in order to perform will not be able to utilize
two levels of mitigation. This is considered a direct
threat to the health and safety of the individual and
others. Therefore, they will be placed on leave without
pay status, but will retain their medical and instrument
insurance through July 3, 2022. They may be permitted
to return to work once these protocols are lifted, or they
are in compliance with the protocols on a rolling basis;
January 10, 2022, February 22, 2022, or May 16, 2022.
4
Face Masks:
Currently, per federal regulations and recent orders from
the State of Hawaii, all individuals are required to wear a
face mask while indoors, regardless of their vaccination
status. The HSO recognizes exceptions to this masking
requirement for individuals in performative situations or
while on camera being filmed. Examples for HSO are
for wind and brass players or for singers and speakers
when actively performing. For those performing artists
who are eligible for this exception, COVID testing will
be required. Information regarding COVID testing will
be sent out in the week prior to affected services.
Face masks should be well-fitting, not transparent, have
two or more layers, completely cover your mouth and
nose, and fit snugly against the sides of your face with no
gaps. Face masks with vents are not approved. Black
medical masks will be available to anyone who requests
them for performance services. If someone forgets their
mask or needs a compliant mask for other rehearsals,
they should let management know.
ECF No. 11-9 at PageID.200–01.
Under the face mask provisions, all musicians were required to wear
face masks even if they were fully vaccinated. But even fully vaccinated
musicians “in performative situations” such as “wind and brass players or . . .
singers and speakers when actively performing”—because they could not wear a
mask in those situations—would also be required to comply with testing protocols.
See id. at PageID.201.
And under the exemption provisions, even if a musician received an
exemption (or had applied for an exemption but was awaiting an answer), that
5
musician—if they could perform with a face mask—would also be required to test
for COVID-19 periodically and receive a negative test result before being allowed
to enter HSO venues. See id. at PageID.200–01. Moreover, even if a musician had
received an exemption but “must remove their face mask in order to perform,” that
musician would “not be able to utilize two levels of mitigation,” i.e., masking and
testing. Such musicians (such as “wind and brass players or . . . singers and
speakers when actively performing” would could not perform with a face mask)
would be “considered a direct threat to the health and safety of the individual and
others,” and would thus be placed on indefinite leave without pay so long as they
were not fully vaccinated (and regardless of receiving the exemption). See ECF
No. 11-9 at PageID.200–01. Effectively, then, musicians who could not perform
with a face mask had no real option under the Protocols—get vaccinated or be
placed on leave without pay.
When the CBA’s COVID-19 Protocols were negotiated, the Mayor of
the City and County of Honolulu had declared a state of emergency pursuant to
Hawaii law, and enacted a Proclamation and Emergency Order No. 2021-14 (and
subsequent extensions) (the “Mayor’s Proclamation”), of which the court takes
judicial notice, as explained later. See ECF No. 11-6. Included within the Mayor’s
Proclamation was “Order 10, Safe Access Oahu,” which provided as follows:
A.
All covered entities shall not permit a patron to
enter covered premises without displaying proof of
6
full vaccination, and identification bearing the
same identifying information as the proof of full
vaccination. Furthermore, all covered entities shall
not permit a full or part-time employee, intern,
volunteer, or contractor to enter covered premises
without proof of full vaccination.
B.
Exceptions: The following individuals are exempt
from this Order 10, section A above, and therefore
may enter covered premises without proof of full
vaccination, unless otherwise indicated in this
Proclamation and Order:
1.
Patrons with proof of a negative COVID-19
test result taken within 48 hours of entry into
the covered premises, and identification
bearing the same identifying information as
the proof of negative COVID-19 test
presented (the negative test result required
under this section B must be from an FDA
approved, or FDA EUA approved,
molecular or antigen test);
2.
Full or part-time employees, interns,
volunteers, or contractors with proof of a
negative COVID-19 test result taken within
seven (7) days of entry into the covered
premises (the negative test result required
under this section B must be from an FDA
approved, or FDA EUA approved,
molecular or antigen test);
3.
Individuals under 12 years of age; or
4.
Individuals entering and remaining for 15
minutes or less per 24-hour day . . . .
ECF No. 11-6 at PageID.109–10. The Mayor’s Proclamation did not include
specific religious or disability exceptions. And Order 12 of the Proclamation
7
provided for penalties for violation of any of the Proclamation’s orders, to be
enforced by law enforcement personnel of the State of Hawaii and City & County
of Honolulu. Id. at PageID.112–13.
2.
The October 2021 Imposition of the CBA’s COVID-19 Protocols
and Gallagher’s Request for an Exemption
The Complaint describes certain events that happened during a Zoom
call on October 22, 2021 (“the Call”), conducted and led by Union attorney
Barbara Jaccoma. ECF No. 1 at PageID.6. 4 During the Call, the HSO’s musicians
were told the details of the CBA’s COVID-19 Protocols and were asked to vote on
them. Id. The Complaint alleges that during the Call, “Mr. Gallagher (and other
Catholics on [t]he Call) was publicly derided as a person of faith and mocked
because he is Catholic.” Id. It also describes allegedly discriminatory or offensive
remarks made by Jaccoma regarding requests for religious accommodation from
Catholics based on publicized statements from Pope Francis, the head of the
Catholic Church; and other “belittl[ing]” remarks regarding unvaccinated
individuals. Id. at PageID.7. Moreover, the Complaint includes several
paragraphs describing purported shortcomings of the Protocols, stating that they
were “irrational, arbitrary, and capricious from the start.” Id. at PageID.9.
4
The Complaint alleges that “[u]pon information and belief, Ms Jaccoma is an attorney
licensed in New York State and is not licensed in Hawaii.” ECF No. 1 at PageID.6 n.3.
8
Ultimately, however, the Complaint does not challenge the CBA’s
COVID-19 Protocols facially. Rather, the Complaint alleges causes of action
(Counts I and II) under Title VII and Hawaii Revised Statutes (“HRS”) Chapter
378 for disparate treatment based on religion and failure to accommodate. Id. at
PageID.14–20. It also alleges, in Counts III and IV, unlawful retaliation under
Title VII and HRS Chapter 378. And it alleges in Count V a stand-alone claim for
punitive damages, describing allegations of willful and intentional discrimination.
Id. at PageID.23–24.
The causes of action are based on allegations that Gallagher sought a
timely religious-based exemption under the terms of the Protocols, but the HSO
ignored the request and, instead, placed him on indefinite unpaid leave after he
failed to submit proof of an approved COVID-19 vaccination. Id. at PageID.10–
13. It alleges that “[f]ollowing his submission [of the exemption request], HSO did
not ask Mr. Gallagher any follow up questions concerning his sincerely held
religious beliefs, nor did it engage him in the interactive process for a reasonable
accommodation, even while Mr. Gallagher followed up with HSO for status on his
accommodation request.” Id. at PageID.10. Instead, the
HSO skipped the interactive process entirely and
unilaterally declared without any specific basis that Mr.
Gallagher was a “direct threat” to others, even though he
was not; conclusively declared without any specific basis
that no accommodation to the Policy was possible for
Mr. Gallagher because it would create for HSO an
9
“undue hardship;” and then placed him on indefinite
unpaid leave.
Id. at PageID.10–11. That is, he alleges that “[his] request was not processed at
all—it was completely ignored.” Id. at PageID.12.
The Complaint contends that the HSO did not allow Gallagher to
perform even with some of the testing provisions in the Protocols. It alleges that
“the Policy expressly states that individuals, like Mr. Gallagher, ‘who have not
received a response’ to their request for accommodation must in the alternative
provide a negative PCR test no longer than 48 hours old, in order to enter a HSO
office or venue,” and “despite this express term, Mr. Gallagher was given no such
choice.” Id. at PageID.12. “Instead, HSO informed him that ‘[a]t this time, a
religious exemption would result in necessary accommodations that would place
an undue hardship upon the organization and pose a direct threat to health and
safety.’” Id. And it alleges that he was otherwise not given “the option to mask
and/or to use ‘a negative PCR COVID-19 test date stamped no longer than 48
hours before each entry at the HSO Office.’” Id. at PageID.13.5
5
The Complaint also alleges “upon information and belief,” that the HSO granted “at
least one accommodation from the Policy, based on a sincerely held religious belief, to another
HSO musician who, unlike Mr. Gallagher, was not placed on indefinite unpaid leave.” ECF No.
1 at PageID.20.
10
3.
Allegations of Retaliatory Conduct
As for retaliation, the Complaint alleges that “[a]fter he requested an
accommodation from the Policy, Mr. Gallagher did not hear from HSO on the
status of his request for several weeks,” and “[w]hen he followed up with HSO for
a status . . . [it] responded by arbitrarily calling him [a] ‘threat to others’ and placed
him on indefinite unpaid leave.” Id. Specifically, it alleges that “[Gallagher]
engaged in the protected activity of requesting an accommodation from the Policy
based on his sincerely held religious beliefs and/or because he engaged in the
protected activity of filing a Charge of discrimination with the [Equal Employment
Opportunity Commission (“EEOC”)] and [Hawaii Civil Rights Commission
(“HCRC”)] after his request was denied” and that “[h]e was placed on indefinite
unpaid leave without any interactive process after submitting his request for
accommodation, and after he followed up on that request[.]” Id. at PageID.21.
And it alleges that “[t]here is a causal link between the two—submitting his
protected request for accommodation and [the] HSO’s adverse employment
action[.]” Id.
B.
Procedural Background
Plaintiff timely filed this action on September 26, 2023, after he
received right-to-sue letters from the EEOC and HCRC on June 29, 2023 and July
19, 2023 respectively. See ECF No. 1 at PageID.4. The HSO filed its Motion to
11
Dismiss on October 23, 2023. ECF No. 11.6 Gallagher filed his Opposition on
December 29, 2023, ECF No. 22, and the HSO filed a Reply on January 8, 2021,
ECF No. 23. Supplemental briefs were filed on January 18, 2024. ECF Nos. 25,
26. The court heard oral argument on February 7, 2024. ECF No. 29.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
for “failure to state a claim upon which relief can be granted.” A Rule 12(b)(6)
dismissal is proper when there is either a “lack of a cognizable legal theory or the
absence of sufficient facts alleged.” UMG Recordings, Inc. v. Shelter Capital
Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica
Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)). Rule 12 is read in conjunction
with Rule 8(a)(2), which “requires only ‘a short and plain statement of the claim
showing that the pleader is entitled to relief.’” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation and internal quotations omitted).
To survive a Rule 12(b)(6) motion to dismiss for failure to state a
claim, a complaint must offer “more than labels and conclusions,” and instead
contain “enough factual matter” indicating “plausible” grounds for relief, not
6
Gallagher asks the court to deny the Motion under Local Rule (“LR”) 7.8 because the
HSO, admittedly, did not meet and confer within seven days prior to filing the Motion as
required by LR 7.8. Instead, the parties only met-and-conferred three days prior the filing of the
Motion. In an exercise of discretion, the court declines to strike the motion based on LR 7.8.
The HSO’s counsel has adequately explained the reasons for the discrepancy, and further
explains that a substantive discussion was held between counsel. See ECF No. 23-1.
12
merely “conceivable” ones. Banks v. N. Tr. Corp., 929 F.3d 1046, 1055–56 (9th
Cir. 2019) (citing Twombly, 550 U.S. at 555–56). And in a Rule 12(b)(6) analysis,
the court accepts as true the material facts alleged in the complaint and construes
them in the light most favorable to the nonmovant. Steinle, 919 F.3d at 1160.
IV. DISCUSSION
A.
The Court Will Consider Information Regarding COVID-19, the
Master Collective Bargaining Agreement, and Related Documents
Initially, Gallagher challenges the HSO’s use in these proceedings of
certain exhibits attached to its Motion to Dismiss and other information not
specifically referred to in the Complaint. See ECF No. 22 at PageID.241–43. In
particular, Gallagher objects to the use of certain data from the State of Hawaii
Department of Health regarding COVID-19 infections and corresponding deaths as
of October 18, 2023 (“COVID-19 data”). See ECF No. 11-2 at PageID.47. He
also objects to the use of the Mayor’s Proclamation. See ECF No. 11-6.
When evaluating a complaint’s allegations under a Rule 12(b)(6)
motion to dismiss, courts generally may not consider material outside the
complaint. See, e.g., Fed. R. Civ. P. 12(d). Two exceptions are (1) the
incorporation-by-reference doctrine, and (2) judicial notice. See, e.g., Khoja v.
Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018).
“[I]ncorporation-by-reference is a judicially created doctrine that
treats certain documents as though they are part of the complaint itself.” Id. at
13
1002. It allows courts to incorporate documents into a complaint “if the plaintiff
refers extensively to the document or the document forms the basis of the
plaintiff’s claim.” Id. (quoting United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.
2003)). Doing so “prevents plaintiffs from selecting only portions of documents
that support their claims, while omitting portions of those very documents that
weaken—or doom—their claims.” Id. (citation omitted). “[T]he mere mention of
the existence of a document is insufficient to incorporate the contents of a
document.” Id. (quoting Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th
Cir. 2010)). But if a claim “necessarily depend[s]” on a document, courts can
incorporate it by reference. Id. It is “[a] more difficult question” whether a
document can ever ‘form[] the basis of the plaintiff’s claim’ if the complaint does
not mention the document at all.” Id. (quoting Ritchie, 342 F.3d at 907). 7
7
Khoja cautioned courts about what inferences it may draw from incorporated
documents, “consistent with the prohibition against resolving factual disputes at the pleading
stage.” 899 F.3d at 1003 (citations omitted). It explained:
Submitting documents not mentioned in the complaint to create a defense is
nothing more than another way of disputing the factual allegations in the
complaint . . . . Although the incorporation-by-reference doctrine is designed to
prevent artful pleading by plaintiffs, the doctrine is not a tool for defendants to
short-circuit the resolution of a well-pleaded claim.
Id. Thus, the doctrine does not allow a court to consider a defense (at the pleading stage) that is
inconsistent with a well-pled complaint. See id. at 1002 (“[I]f the document merely creates a
defense to the well-pled allegations in the complaint, then that document did not necessarily
form the basis of the complaint. Otherwise, defendants could use the doctrine to insert their own
version of events into the complaint to defeat otherwise cognizable claims.”).
14
Similarly, courts can consider matters outside the pleadings by
judicial notice under Federal Rule of Evidence 201. Rule 201 “permits a court to
notice an adjudicative fact if it is ‘not subject to reasonable dispute.’” Id., 899 F.3d
at 999 (quoting Fed. R. Evid. 201(b)). “A fact is ‘not subject to reasonable
dispute’ if it is ‘generally known,’ or ‘can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.’” Id. (quoting Fed.
R. Evid. 201(b)(1)–(2)). Although a court may take judicial notice of matters of
public record, it “cannot take judicial notice of disputed facts contained in such
public records.” Id. And “[a] court must also consider—and identify—which fact
or facts it is noticing from such a [record]. Just because the document itself is
susceptible to judicial notice does not mean that every assertion of fact within that
document is judicially noticeable for its truth.” Id.
Given these principles, Gallagher asks the court to disregard (1) the
COVID-19 data, see ECF No. 11-2 at PageID.47; and (2) the Mayor’s
Proclamation (and subsequent extensions) regarding the COVID health crisis, see
ECF No. 11-6. Gallagher argues that his Complaint does not reference such
information and their use at this stage violates the incorporation-by-reference
doctrine and judicial-notice limitations.
The COVID-19 statistics cited in the HSO’s Motion were taken from
the State of Hawaii, Department of Health’s online listing of COVID-19 case
15
counts. See ECF No. 11-2 at PageID.47 nn. 1, 2. This information is a matter of
public record. Although the statistics are cited as true figures of infected
individuals and deaths, the Motion to Dismiss does not base its arguments on those
figures themselves. Rather, it cites the statistics in support of the HSO’s
introductory statement that “[t]he COVID-19 pandemic is a public health
emergency in Hawai‘i.” Id. at PageID.47. Although the court cannot now (in
March of 2024) easily confirm that those figures are the same as were posted on
October 18, 2023, there is no argument that those figures are false. This lawsuit is
not based on the precise accuracy of those figures; it is based on actions or
inactions that occurred because of the COVID-19 crisis. Moreover, no one can
reasonably question that the COVID-19 pandemic was declared as a public health
emergency in 2020 to 2022, which is the time-frame largely at issue in the
Complaint. The court thus takes judicial notice of the figures cited by the HSO as
an indication that COVID-19 was a public health crisis at relevant times.
Similarly, the court takes judicial notice of the contents of the
Mayor’s Proclamation, including its specific emergency orders—both the October
8, 2021, version at ECF No. 11-6, PageID.103–148, and subsequent extensions of
the Proclamation until March 6, 2022, see ECF No. 23 at PageID.268–69 (noting
the extensions). These are public documents, the contents of which are undisputed.
Although some might have questioned whether certain requirements or orders
16
within the Mayor’s Proclamation were necessary, this suit is not challenging the
necessity of any particular order. And there can be no dispute that the Mayor’s
Proclamation contained the requirements and orders. The court is not taking
judicial notice of any disputed facts within the Mayor’s Proclamation. Rather, it is
taking judicial notice of undisputed adjudicative facts under Federal Rule of
Evidence 201(b). See, e.g., Reclaim Idaho v. Little, 469 F. Supp. 3d 988, 995 n.1
(D. Idaho 2020) (taking judicial notice at a preliminary injunction stage of COVID
emergency proclamations and stay-at-home orders); Clark v. Governor of N.J., 53
F.4th 769, 772 n.5 (3d Cir. 2022) (taking judicial notice of such COVID-19
government orders).8
B.
The HSO Has Withdrawn Its Argument That, Because Plaintiff Failed
to Exhaust or Arbitrate the Present Dispute, the Court Lacks “SubjectMatter Jurisdiction”
Next, the HSO had argued that this court lacks “subject-matter
jurisdiction” because Gallagher had not filed or exhausted union grievance
8
The HSO’s Motion to Dismiss also relies on (1) the Master Agreement between the
HSO and Local 677, ECF No. 11-7; and (2) related Local 677 documents, including the CBA’s
COVID-19 Protocols. Gallagher, however, does not object to the HSO’s citation to the Master
Agreement or the COVID-19 Protocols.
In any event, the Master Agreement and the Protocols fall within the incorporation-byreference doctrine. Some of the COVID Protocols (referred to in the Complaint as “the Policy”)
are cited in the Complaint and certainly form, at least in part, “the basis of the plaintiff’s claim.”
Khoja, 899 F.3d at 1002. See, e.g., ECF No. 1 at PageID.5 (Complaint describing various
provisions of the COVID Policy, which the “HSO imposed [as] a new term of employment on its
musicians”). Further, the court will allow the HSO to rely on provisions of the Master
Agreement that are not subject to dispute because the Complaint also alleges or implies that the
Policy was adopted as part of the CBA. The Complaint relies on related union matters and the
alleged relationship between the Union and the HSO. See, e.g., id. at PageID.6.
17
procedures set forth in the Master Agreement, which is the operative CBA to
which Gallagher is or was a member. See ECF No. 11-2. at PageID.51–55.
Initially, the court emphasizes that the failure to comply with the
CBA’s grievance provisions—even assuming they applied here—would not have
affected the court’s “subject-matter jurisdiction.” Rather, such a requirement is
akin to a non-jurisdictional “claim-processing rule” that can be waived. See, e.g.,
Union Pac. R.R. Co. v. Brotherhood of Locomotive Eng’rs & Trainmen Gen.
Comm. of Adjustment, 558 U.S. 67, 81–82 (2009) (discussing difference between
jurisdictional and claim-processing rules); Ruiz v. Donahoe, 784 F.3d 247, 249 (5th
Cir. 2015) (“[M]andatory grievance and arbitration procedures in contracts, such as
the CBA . . . are waivable and do not affect this court’s subject-matter
jurisdiction.”); Wilkins v. United States, 143 S. Ct. 870, 876 (2023) (“Loosely
treating procedural requirements as jurisdictional risks undermining the very
reason Congress enacted them.”).
When first reviewing the issue, the court sought supplemental briefing
from the parties as to whether the Master Agreement’s mandatory grievance
language was specific enough to encompass statutory claims such as the Title VIIbased claims alleged in this case. See ECF No. 24; see, also, e.g., Wright v.
Universal Mar. Serv. Corp., 525 U.S. 70, 79–82 (1998) (concluding that a unionnegotiated waiver of an employee’s statutory right to a judicial forum for statutory
18
discrimination claims must be clear and unmistakable). In its response, the HSO
forthrightly conceded that the Master Agreement does not “clearly and
unmistakably” indicate an intent to arbitrate statutory discrimination claims, and
thus indicated that it withdraws this argument. See ECF No. 26 at PageID.298.
Accordingly, the court proceeds to analyze whether the Complaint states a
plausible claim for relief, and whether the HSO is entitled to an undue-hardship
defense as a matter of law at this stage of the proceedings.
C.
The Complaint States a Plausible Claim Under Title VII and HRS
Chapter 378
The HSO argues that the Complaint fails to state a claim under Title
VII and HRS Chapter 378 (the corresponding state-law discrimination statute) for
two reasons.
First, it argues the Complaint does not allege an “adverse employment
action.” See, e.g., Storey v. Burns Intern Sec. Servs., 390 F.3d 760, 764 (3d Cir.
2004) (analyzing an “adverse employment action” element in addressing a motion
to dismiss a Title VII claim); cf. Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 655
(9th Cir. 2006) (reiterating, for purposes of the McDonnell Douglas burdenshifting analysis at summary judgment, that a prima facie case of a failure-toaccommodate Title VII claim requires, among other things, a showing that an
19
employer “discharged, threatened, or otherwise subjected [plaintiff] to an adverse
employment action”). 9
Second, it argues that it could not have granted Gallagher a religious
exemption from the COVID-19 vaccination requirement because granting such an
exemption would have constituted an “undue hardship” as a matter of law. The
court addresses each argument in turn, but ultimately disagrees with both reasons
at the motion-to-dismiss stage. 10
9
Although “an employment discrimination plaintiff need not plead a prima facie case of
discrimination,” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002), to survive a motion to
dismiss, a complaint must nevertheless “state a plausible claim for relief” that “permits the court
to infer more than the mere possiblity of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). And a plaintiff who fails to allege an “adverse employment action” is not a person
“claiming to be aggrieved” under Title VII, which provides in pertinent part that “a civil action
may be brought . . . by the person claiming to be aggrieved.” Storey, 390 F.3d at 764 & n.12
(quoting 42 U.S.C. § 2000e-5(f)(1)).
10
The court does, however, agree with the HSO that Gallagher’s Opposition improperly
relies on the now-retired “no set of facts” standard in opposing a motion to dismiss in federal
court. See, e.g., ECF No. 22 at PageID.252 (relying on the standard from Conley v. Gibson, 355
U.S. 41, 45–46 (1957) that a claim may be dismissed only if “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief”). The
“no set of facts” standard was abrogated by Bell Atlantic v. Twombly, 550 U.S. 544, 562–63
(2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See, e.g., Johnson v. City & Cnty. of
Honolulu, 2023 WL 1993972, at *3 (D. Haw. Feb. 14, 2023) (“The ‘no set of facts’ pleading
standard does not reflect current law [in federal court] . . . .”). Although it remains true that a
complaint requires only “a short and plain statement of the claim,” it nevertheless must be
“plausible on its face,” Twombly, 550 U.S. at 555, 570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. For the most part,
Plaintiff meets the plausibility standard.
20
1.
Adverse Employment Action
The HSO argues that the Complaint, which alleges that Gallagher was
placed on unpaid leave for failing to vaccinate, is insufficient as a matter of law
because unpaid leave is not an adverse employment action. This argument applies
to both Gallagher’s discrimination and retaliation claims. See, e.g., Berry, 447
F.3d at 655 (setting forth elements of a prima facie Title VII claim); Poland v.
Chertoff, 494 F.3d 1174, 1179–80 (9th Cir. 2007) (“To establish a claim of
retaliation, a plaintiff must prove that (1) the plaintiff engaged in a protected
activity, (2) the plaintiff suffered an adverse employment action, and (3) there was
a causal link between the plaintiff’s protected activity and the adverse employment
action.”) (citation omitted).
But the Ninth Circuit “define[s] ‘adverse employment action’
broadly.” Fonseca v. Sysco Food Servs. of Ariz., 374 F.3d 840, 847 (9th Cir. 2004)
(citations omitted). The Ninth Circuit accords with other Circuits that “take an
expansive view of the type of actions that can be considered adverse employment
actions.” Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000) (citations
omitted). Thus, it “ha[s] recognized that an adverse employment action exists
where an employer’s action negatively affects its employee’s compensation.”
Fonseca, 374 F.3d at 847 (citation omitted). And imposing indefinite unpaid leave
21
in response to an employee’s request for a religious accommodation—as alleged
here—certainly “negatively affects [an] employee’s compensation.” Id.
There might be some situations where unpaid leave could itself
constitute a reasonable accommodation. See, e.g., Ansonia Bd. of Educ. v.
Philbrook, 479 U.S. 60, 70 (1986) (“We think that the school board policy in this
case, requiring respondent to take unpaid leave for holy day observance that
exceeded the amount allowed by the collective-bargaining agreement, would
generally be a reasonable one.”). But unpaid leave can nevertheless constitute an
adverse employment action, especially here—as Gallagher alleges, see, e.g., ECF
No. 1 at PageID.13—the unpaid leave was both involuntary and indefinite.
Indeed, in denying similar motions to dismiss failure-to-accommodate claims
(including claims based on COVID-19 vaccination requirements), courts within the
Ninth Circuit have reasoned that “[t]he fact that unpaid leave may, in certain
circumstances and where requested, constitute a reasonable accommodation does
not mean that it cannot also be an adverse action, particularly where the employee
is placed on unpaid leave involuntarily.” Zimmerman v. PeaceHealth, 2023 WL
7413650, at *5 (W.D. Wash. Nov. 9, 2023) (quoting Steenmeyer v. Boeing Co., 92
F. Supp. 3d 1024, 1031 (W.D. Wash. 2015) (alteration omitted); see also, e.g., Cox
v. Nw. Regional Educ. Serv. Dist., 2024 WL 777598, at *8 (D. Or. Feb. 23, 2024)
(“Ansonia is not on point and it does not hold that placement on extended or
22
indefinite unpaid leave is not an adverse employment action as a matter of law.”);
Magee v. Trader Joe’s Co., 2020 WL 9550008, at *11 (D. Or. Sept. 1, 2020)
(“[P]lacing an employee on unpaid leave involuntarily may be considered an
adverse action.”); E.E.O.C. v. United Postal Serv. Inc., 2017 WL 3503676, at *5
(D. Ariz. June 19, 2017) (reasoning that forced unpaid leave in response to request
for additional accommodations could constitute an adverse employment action);
Dawson v. Akal Sec. Inc., 660 F. App’x 504, 506 (9th Cir. 2016) (“The fact that
unpaid leave may be a reasonable accommodation when it is requested ‘does not
mean that it cannot also be an adverse action, particularly where the employee is
placed on unpaid leave involuntarily.’”) (mem.) (quoting Steenmeyer, 92 F. Supp.
3d at 1031).
The court is persuaded by the reasoning of these cases and thus rejects
Defendant’s argument that, under the facts as pled, the Complaint fails to state a
claim merely because it’s based on imposition of unpaid leave.
2.
Undue Hardship
Next the HSO argues that granting an exemption would have resulted
in an undue hardship in its operations. As applicable here, under Title VII (and
similarly under HRS Chapter 378) 11 it is an unlawful employment practice for a
11
Under Hawaii state law, Hawaii Administrative Rules (“HAR”) provide “undue
hardship” as a defense to religious discrimination. See HAR § 12-46-157.
23
covered employer “to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . religion . . . .” 42 U.S.C. § 2000e-2(a)(1).12 And Title VII defines
“religion” as including:
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 . . .
religious observance or practice without undue hardship
on the conduct of the employer’s business.
42 U.S.C. § 2000e(j) (emphasis added); see also 29 C.F.R § 1605.2(e) (defining
undue hardship).
An undue hardship defense would also preclude liability premised on
a failure to engage in an “interactive process” in this Title VII context. Although a
failure to engage in an interactive process is not an independent claim in a Title VII
case, it may constitute evidence of discriminatory animus. See Shahid-Ikhlas v.
N.Y. & Presbyterian Hosp., Inc., 2023 WL 3628151, at *6 (S.D.N.Y. May 5, 2023)
(“[T]o the extent that Plaintiff seeks to assert a [Title VII] claim based on
Defendant’s alleged failure to engage in an interactive process . . . the Court finds
that there is no such independent claim.”), report and recommendation adopted,
12
HRS § 378-2(a)(1)(A) also makes it an unlawful discriminatory practice, among other
reasons, for any employer “to discriminate against any individual in compensation or in the
terms, conditions, or privileges of employment” (emphasis added) because of religion (among
other protected classes).
24
2023 WL 3626435 (S.D.N.Y. May 24, 2023); cf. Snapp v. United Transp. Union,
889 F.3d 1088, 1095 (9th Cir. 2018) (“[T]here exists no stand-alone claim [under
the ADA] for failing to engage in the interactive process. Rather, discrimination
results from denying an available and reasonable accommodation.”). But “[i]f an
employer can show that no accommodation was possible without undue hardship,
it makes no sense to require that he engage in a futile act.” E.E.O.C. v. Townley
Eng’g & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988); see also id. at 615 n.7 (“[The
Ninth Circuit has] often allowed an employer who has made no attempt at
accommodation to argue as justification ‘undue hardship.’”) (citation omitted).
“[A]n employer does not act in bad faith when it does not attempt an
accommodation it sincerely believes would cause it undue hardship.” Id. at 615
n.7.
Groff v. DeJoy, 143 S. Ct. 2279 (2023), recently clarified that to
demonstrate “undue hardship” an employer “must show that the burden of granting
an accommodation would result in substantial increased costs in relation to the
conduct of its particular business.” Id. at 2295. Groff, addressing case law that
adopted a “de minimis” standard, clarified that an undue hardship defense “means
something very different from a burden that is merely more than de minimis. . . .”
Id. (analyzing 29 C.F.R § 1605.2(e), which uses the term “more than de minimis
cost” in addressing undue hardship). And the Supreme Court explained that
25
“courts must apply the test in a manner that takes into account all relevant factors
in the case at hand, including the particular accommodations at issue and their
practical impact in light of the nature, size and operating cost of an employer.” Id.
(citation and internal editorial marks omitted).
The HSO argues that it could not have granted Gallagher a religious
exemption because doing so would have constituted an undue hardship as a matter
of law, raising two basic types of undue hardship—a conflict with laws, and
jeopardy to other employees and the public.
a.
Conflict with laws
The HSO contends that if it had granted Gallagher an exemption as he
requested then it would have unlawfully violated vaccination standards required by
the Mayor’s Proclamation. See ECF No. 11-6 at PageID.112 (“[V]iolation of any
of the orders is an emergency period infraction . . . and subject to a $250 fine,
unless the Proclamation and Order, or part thereof, designates a different penalty
for a particular violation.”). The argument is based on case law like BoldenHardge v. Office of California State Controller, 63 F.4th 1215 (9th Cir. 2023), in
which the Ninth Circuit reiterated that, with private employers, “‘an employer is
not liable under Title VII for failure to accommodate when accommodating an
employee’s religious beliefs would require the employer to violate federal or state
law’ because ‘the existence of such a law establishes “undue hardship.”’” Id. at
26
1225 (quoting Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 830 (9th
Cir. 1999)) (brackets omitted); see also, e.g., Riley v. N.Y. City Health & Hosps.
Corp., 2023 WL 2118073, at *4 (S.D.N.Y. Feb. 17, 2023) (reiterating that “Title
VII cannot be used to require employers to break the law” in addressing a religious
challenge arising from a COVID-19 vaccine mandate) (citations omitted)
Specifically, the HSO points to paragraph A of “Order 10: Safe
Access Oahu,” of the Mayor’s Proclamation, which provided that “all covered
entities shall not permit a full or part-time employee . . . to enter covered premises
without proof of full vaccination.” ECF No. 11-6 at PageID.110. Notably—
although the Mayor’s Proclamation does not include a specific exemption for
religious beliefs—Order 10 listed four other specific “Exceptions” that allow
individuals “to enter covered premises without proof of full vaccination.” Id. The
second exception (“Exception Two”) included “[f]ull or part-time employees . . .
with proof of a negative COVID-19 test result taken within seven (7) days of entry
into the covered premises . . . .” Id. In short, the Mayor’s Proclamation allowed
testing in lieu of vaccination.
And so, the court rejects this defense of undue hardship. First, the
HSO appears to misread the Complaint in arguing that the HSO could not “waive
the COVID Protocols for Plaintiff.” See ECF No. 11-2 at PageID.59. The
Complaint is not alleging a failure of the HSO to waive the Protocols. Rather, it is
27
based on an alleged failure of the HSO to even consider Gallagher’s request for an
exemption, as allowed for in the Protocols. See ECF No. 11-9 at PageID.200
(Protocols purporting to allow for “an approved exemption” from the vaccination
requirement “due to a medical reason” or “a sincerely held religious belief”). The
Complaint’s operative theory is that the HSO unlawfully discriminated based on
religion by ignoring the request for an exemption, essentially determining that any
exemption would be an undue hardship. See ECF No. 1 at PageID.12 (Complaint
alleging that “despite this express term [allowing testing], Mr. Gallagher was given
no such choice” and that “Mr. Gallagher’s request [for exemption] was not
processed at all—it was completely ignored,” and “despite this express exception,
it was not provided to Mr. Gallagher to allow him to continue performing and
avoid being placed on indefinite unpaid leave”).13
And, similar to Exception Two in the Mayor’s Proclamation, the
CBA’s COVID-19 Protocols allowed for testing, if an exemption was granted, so
long as the musician could perform with a face mask. Only those musicians who
13
At times, the Complaint equates—rather imprecisely—a request for an “exemption” as
being the same thing as a request for an “accommodation.” Although there may be an important
difference between “exemption” and “accommodation” given the particular terms of the
Protocols, the court—construing the Complaint in the light most favorable to the plaintiff—reads
the Complaint to mean Gallagher sought to avoid the vaccination requirement with testing in lieu
of vaccinating (or at least the HSO should have engaged in an interactive process to consider
testing). If Gallagher had sought to avoid vaccination without testing, then the HSO’s conflictwith-law argument has validity because the HSO would have violated the Mayor’s Proclamation
with such an exemption.
28
must remove their face mask to perform (for example, “wind and brass players
or . . . singers and speakers when actively performing”), would be precluded from
the testing exemption from vaccination. Those individuals would “not be able to
utilize two levels of mitigation [face masks and testing],” and were considered to
be “a direct threat to the health and safety of the individual and others.” ECF No.
11-9 at PageID.200.14 But this disallowance would not have applied to
Gallagher—a bass player (a stringed instrument)—who could perform with a
14
To repeat, the CBA’s COVID-19 Protocols included the following section on
exemptions:
Exemptions:
Individuals who have received an exemption or who have not yet
received a response from a timely application must provide a
negative PCR COVID-19 test date stamped no longer than 48
hours before each entry at the HSO Office, Hawaii Theatre Center,
Blaisdell Concert Hall, or all other venues the HSO is utilizing in
an official capacity. See the testing provision below. If an
individual with an exemption who can play their instrument while
wearing a face mask, refuses to be tested, they will be placed on
leave without pay status but will retain their medical and
instrument insurance through July 3, 2022. They may be permitted
to return to work once these protocols are lifted, or they are in
compliance with the protocols on a rolling basis; January 10, 2022,
February 22, 2022, or May 16, 2022.
Individuals with an exemption that must remove their face mask in
order to perform will not be able to utilize two levels of mitigation.
This is considered a direct threat to the health and safety of the
individual and others. Therefore, they will be placed on leave
without pay status, but will retain their medical and instrument
insurance through July 3, 2022. They may be permitted to return to
work once these protocols are lifted, or they are in compliance with
the protocols on a rolling basis; January 10, 2022, February 22,
2022, or May 16, 2022.
29
mask. And, again, the Complaint also alleges that Gallagher was not given the
opportunity to use these levels of mitigation, i.e., proof of a negative test and
masking. See ECF No. 1 at PageID.12.
Thus, the CBA’s COVID-19 Protocols allowed the HSO to grant an
exception to vaccination for certain musicians (who can perform while wearing a
mask, like Gallagher) that would have been consistent with the Mayor’s
Proclamation. That is, at least based on the facts alleged in the Complaint, it is a
false premise that the HSO had no choice but to deny an exemption from the
vaccine requirement that included testing or else be in violation of the Mayor’s
Proclamation. 15
b.
Endangering other musicians and the public
The HSO also claims undue hardship because accommodating
Gallagher would have subjected other musicians and the public to an increased risk
15
The Complaint includes certain background allegations that might suggest that
Gallagher disagreed with all the CBA’s Protocols (including testing). For example, it alleges
that “[t]he Policy did not offer, discuss, or promote early treatment options, in lieu of the covid
shots” and “did not offer, discuss, or promote natural immunity as an effective countermeasure
against illness from the covid virus.” ECF No. 1 at PageID.8. And it alleges that “the Policy
was irrational, arbitrary, and capricious from the start.” Id. at PageID.9. But the Complaint is
not seeking, retrospectively, to challenge the Policy facially. Rather, its actual claims are for
religious discrimination and retaliation based on the allegation that Gallagher’s request for
accommodation (including testing components) was rejected out of hand—evidencing an antireligious animus.
In that regard, the HSO’s counsel’s argument made at the hearing that Gallagher in fact
told the HSO that he would not agree to testing could be a matter for summary judgment, but
cannot be addressed at this motion-to-dismiss stage where the Court must assume the
Complaint’s well-pleaded facts are true and where the Complaint alleges that Gallagher was not
given the opportunity to comply with the Protocol’s conditions.
30
of COVID-19 infection and jeopardized health and safety. It argues that the
HSO’s overall musical performance would have suffered due to a lack of
musicians who would have gotten sick or been unable to attend rehearsals. It
claims that the “HSO’s audience is generally older” and thus patrons are at a
higher risk for infections, turning performances into potential “super-spreader
events.” ECF No. 11-2 at PageID.60–61. Whether or not these assertions were, or
were thought to have been, true at the time, the arguments are not based on
evidence that can be considered at a motion-to-dismiss stage, nor are all of the
assertions apparent from the allegations of the Complaint.
Undue hardship is an affirmative defense and “a context-specific
standard.” Groff, 143 S. Ct. at 2297. In deciding whether an accommodation
“would result in substantial increased costs in relation to the conduct of [the
HSO’s] business,” the court must “take into account all relevant factors . . .
including the particular accommodations at issue . . . in light of the nature, size and
operating cost of [the HSO].” Id. at 2295. And so, dismissal of the Complaint at
this motion-to-dismiss stage “is proper ‘only if the defendant shows some obvious
bar to securing relief on the face of the complaint’ or in ‘any judicially noticeable
materials.” Bolden-Hardge, 63 F.4th at 1224–25 (quoting ASARCO, LLC v. Union
Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014)).
31
Given the standard reiterated in Bolden-Hardge—although a danger
appears obvious given news reports and reliable sources of medical knowledge—
the court is unable to find as a matter of law at this motion-to-dismiss stage that the
HSO is entitled to this undue hardship defense. The court has no knowledge, for
example, of the HSO’s particular operations or performance limitations, nor those
of a symphonic orchestra generally. Nor can it assume to know the demographics
of the HSO’s particular audience, much less the types and feasibility of changes a
symphony could make to accommodate musicians. And the court would need to
consider whether Gallagher could have performed safely with a mask while having
been tested at regular intervals, taking judicial notice that a bass is a string
instrument.
That is, it is not clear from the face of the Complaint and judiciallynoticeable documents that the HSO is entitled to this undue hardship defense under
Groff at this stage. “This is a fact-intensive inquiry that cannot properly be decided
on the limited record before this Court.” MacDonald v. Or. Health & Science
Univ., ___ F. Supp. 3d ___, 2023 WL 5529959, at *8 (D. Or. Aug. 28, 2023)
(denying motion to dismiss complaint alleging religious discrimination for failure
to exempt plaintiff from COVID-19 vaccination requirement, rejecting undue
hardship defense based on substantial cost, and alleged inability to grant exemption
without violating government regulations); see also, e.g., Zimmerman, 2023 WL
32
7413650, at *10 (reasoning when evaluating undue hardship in a COVID-19
vaccination challenge, that “[t]he amended complaint, including the materials cited
within it, is not sufficient to establish undue hardship . . . [but] a standard of review
that allows for the consideration of evidence may yield a different outcome”); Lee
v. Seasons Hospice, ___ F. Supp. 3d ___, 2023 WL 6387794, at *4 (D. Minn. Sept.
29, 2023) (“It may be true that accommodating plaintiffs by offering religious or
medical exemptions would have increased the risk to staff and patients or damaged
Seasons’ reputation—and it may be true that the increased risks or reputational
damage would have been significant enough to create an undue hardship—but
these are matters that cannot be resolved without a factual record.”).
Accordingly, the HSO’s Motion to Dismiss as to an undue hardship
defense based on public and employee safety is DENIED.
D.
The Complaint States a Plausible Claim for Retaliation in Part
A prima facie retaliation claim under Title VII requires that (1) the
plaintiff “have engaged in a protected activity,” (2) the plaintiff “suffered an
adverse employment action,” and (3) “there was a causal link” between the
protected activity and the adverse action. Stegall v. Citadel Broad. Co., 350 F.3d
33
1061, 1065–66 (9th Cir. 2003) (citation omitted).16 A Title VII retaliation claim is
based on 42 U.S.C. § 2000e-3(a), which provides:
Discrimination for making charges, testifying, assisting,
or participating in enforcement proceedings
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
. . . because he has opposed any practice made an
unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under this subchapter.
(Emphases added).17
The first clause (“opposed any practice made unlawful”) is known as
the “opposition clause,” and the second clause (“made a charge, testified, assisted,
16
Although a prima facie case is “an evidentiary standard, not a pleading requirement,”
Swierkiewicz, 534 U.S. at 510, the court may still consider those elements in determining
whether a complaint pleads sufficient factual allegations to state a plausible claim of retaliation.
See, e.g., Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016) (“[Plaintiff’s]
retaliation claim may survive [defendant’s] motion to dismiss if she pleads sufficient factual
allegations to raise a reasonable expectation that discovery will reveal evidence of the following
elements: (1) she engaged in conduct protected by Title VII; (2) the employer took adverse
action against her; and (3) a causal link exists between her protected conduct and the employer’s
adverse action.”); Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d. Cir. 2015)
(“[F]or a retaliation claim to survive a motion for judgment on the pleadings or a motion to
dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated—or took an
adverse employment action—against him, (2) “because” he has opposed any unlawful
employment practice.”).
17
Likewise, a retaliation claim under HRS § 378–2 is subject to the same three-part test.
See, e.g., Gonsalves v. Nissan Motor Corp. in Haw., 100 Haw. 149, 162, 58 P.3d 1196, 1210
(2002).
34
or participated”) is known as the “participation clause.” See, e.g., Crawford v.
Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 274 (2009).
a.
Protected Activity
Plaintiff’s “protected activity” is apparently based on both (1) the
opposition clause of § 2000e-3(a), see ECF No. 1 at PageID.21 (Complaint
alleging that Plaintiff “engaged in the protected activity of requesting an
accommodation from the Policy based on his sincerely held religious beliefs” and
that “[t]here is a causal link between the two—submitting his protected request for
accommodation and HSO’s adverse employment action . . . .”), and on (2) the
“participation clause” of § 2003e(3)(a), see id. (alleging that Gallagher “engaged in
the protected activity of filing a Charge of discrimination with the EEOC and
HCRC after his request [for exemption] was denied”). 18
As for the opposition clause, the Complaint’s allegation that Gallagher
“engaged in the protected activity of requesting an accommodation from the Policy
based on his sincerely held religious beliefs,” id., is ambiguous. If it is based
solely on Gallagher requesting a religious-based exemption as provided in the
CBA’s COVID-19 Protocols, then it is unclear how such a request would be
18
A retaliation claim based on the “participation clause” would seem to fail for lack of a
causal link because the adverse employment action (indefinite unpaid leave) occurred before
Gallagher engaged in that protected activity—the EEOC charge was not filed until “after his
request was denied,” ECF No. 1 at PageID.21, and he was placed on unpaid leave.
35
“opposing” an unlawful practice—the Protocols contained the very request he was
seeking. But if Gallagher is basing a retaliation claim on seeking an exemption
greater than from the Protocols themselves as written—such as a religious-based
exemption from the testing component of the Protocols—then that kind of request
might constitute “opposition” to the policy.
The HSO’s Motion, however, did not specifically challenge the
proposition that simply requesting an exemption from the vaccination requirement
can constitute “opposition” for purposes of the “protected activity” element. As
the court mentioned at the hearing, the Eighth Circuit has held that a request for an
accommodation by itself is insufficient to constitute “opposing” an unlawful
employment practice for purposes of a Title VII retaliation claim. See E.E.O.C. v.
N. Mem’l Health Care, 908 F.3d 1098, 1102–03 (8th Cir. 2018) (“Consistent with
the plain meaning of the word ‘oppose,’ the initial request for a religious
accommodation simply does not ‘implicitly’ constitute opposition to the ultimate
denial of the requested accommodation.”). Some courts, however, have decided
otherwise, indicating that the question is contextual—in cases both under the
Americans with Disability Act and for certain Title VII retaliation claims. See,
e.g., Enriquez v. Gemini Motor Transport LP, 2021 WL 5908208, at *7 (D. Ariz.
Dec. 14, 2021) (citing cases); Parker v. Children’s Nat’l Med. Ctr., Inc., 2021 WL
36
5840949, at *22–23 (D. Md. Dec. 9, 2012) (same). The issue is sufficiently
nuanced such that the court will not address it here on a sua sponte basis.
And so, for present purposes, the court will assume—given that the
issue was neither raised nor briefed—that Gallagher’s request for an exemption in
the context he alleges it was made (and construing the Complaint’s allegations in
Plaintiff’s favor) can satisfy the “protected activity” aspect of his retaliation
claims. See, e.g., ECF No. 1 at PageID.13 (Complaint alleging “[w]hen
[Gallagher] followed up with HSO for a status [the HSO] responded by arbitrarily
calling him [a] ‘threat to others’ and placed him on indefinite unpaid leave.”).
b.
Causation—Whether the protected activity was a “but for” cause of
adverse action 19
The HSO next seeks to dismiss the retaliation claims because the
CBA’s COVID-19 Protocols were “a religion-neutral policy that had been
established before Plaintiff made a religious accommodation claim.” ECF No. 112 at PageID.63 (emphasis in original). It points out that the CBA’s COVID-19
Protocols were implemented on October 22, 2021, which was before Gallagher’s
October 29, 2021 request for a religious accommodation. Id. It thus argues that
“Plaintiff cannot establish a prima facie retaliation case because he has not alleged
19
The court has already addressed the HSO’s challenge to the second element (adverse
employment action).
37
that he was made to comply with the COVID Protocols because of his religion.”
Id. at PageID.61.
The HSO relies on reasoning set forth in O’Hailpin v. Hawaiian
Airlines, 583 F. Supp. 3d 1294 (D. Haw. 2022), and other cases that have rejected
retaliation claims in a vaccination context based on a lack of causation.
O’Hailpin—decided with evidence at an injunctive-motion stage—reasoned in part
that plaintiffs were unlikely to succeed on retaliation claims because any adverse
employment action “appear[ed] to be unconnected to their [accommodation
requests].” Id. at 1311. O’Hailpin explained:
Indeed, the vaccine policy was established, as well as the
consequences for failing to comply with the policy —
i.e., the adverse employment actions at issue here —
before Plaintiffs submitted their [accommodation]
requests. . . . In other words, employees were subject to
termination or unpaid leave for violating the policy
irrespective of whether they submitted an
[accommodation] request.
Id. Another case in this district relied on similar rationale in rejecting an ADA
retaliation claim also based on a refusal to vaccinate against COVID-19. See
Cunningham v. Univ. of Hawaii, 2023 WL 1991783 (D. Haw. Feb. 14, 2023). As
Cunningham reasoned:
Defendant enacted its COVID-19 policy, along with the
punishments for noncompliance, before Plaintiff notified
Defendant of his alleged ADA-based opposition to the
policy. The only reasonable inference is that Plaintiff
would have faced these punishments for his failure to
38
comply with the policy even if he had never said
anything about the ADA. Defendant’s disciplinary steps
“were not actions that Defendant undertook deliberately
to aim at Plaintiff on the basis of [his] criticism of the
policy.”
Id. at *5 (D. Haw. Feb. 14, 2023) (quoting Linne v. Alameda Health Sys., 2023 WL
375687, at *3 (N.D. Cal. Jan. 24, 2023)), aff’d, 2023 WL 10351531 (9th Cir. Sept.
14, 2023) (mem.). And courts across the country have applied that rationale in the
same context. See, e.g., Librandi v. Alexion Pharmaceuticals, Inc., 2023 WL
3993741, at *8 (D. Conn. June 14, 2023) (citing cases); Hines v. Ellis Nursing
Home, Inc., 2023 WL 7619035, at *5 (D. Mass. Nov. 14, 2023) (same); Shklyar v.
Carboline Co., 616 F. Supp. 3d 920, 927 (E.D. Mo. 2022) (same).
This court agrees with those cases, and so retaliation based on a
theory that Gallagher was placed on indefinite unpaid leave as retaliation solely for
requesting an exemption as set forth in the Protocols fails for lack of causation—
under that theory, he was placed on indefinite unpaid leave for failure to comply
with the Protocols, not because of any protected activity.
But Gallagher is not facially challenging the Protocols themselves, nor
does he claim retaliation on a theory that he was “made to comply with the COVID
Protocols because of his religion,” as the HSO contends. Rather, he is also
alleging retaliation based on a theory that he was placed on indefinite unpaid leave
without the HSO even considering his request. Specifically, he alleges that he
39
“was placed on indefinite unpaid leave without any interactive process after
submitting his request for accommodation, and after he followed up on that
request.” ECF No. 1 at PageID.21. That is, in part, the HSO allegedly ignored his
exemption request, and retaliated against him for “following up” on it. To that
extent, there are adequate allegations that discriminatory animus was a “but for”
cause of adverse employment action.20
In sum, the HSO’s Motion is GRANTED in part and DENIED in part.
It is granted as to allegations that Gallagher was retaliated against solely for
refusing to vaccinate (and leave to amend in this regard would be futile, given a
lack of causation). But a retaliation claim is otherwise plausible based on the
allegations in the Complaint.
E.
Count V for Punitive Damages Is Dismissed as a Stand-Alone Count,
Although Such Damages Remain as a Possible Remedy as Alleged in the
Complaint
Finally, the Motion to Dismiss argues—and Plaintiff apparently does
not dispute—that a separate count for “Punitive Damages” can be dismissed
because (although punitive damages are a possible remedy) there is no independent
20
The HSO appears to argue in part that it was justified in having told Gallagher he was
a “direct threat”—as the Complaint alleges. See ECF No. 11-2 at PageID.62 (HSO arguing that
“Plaintiff’s allegation of being told he was a ‘direct threat’ . . . comes from page 2 of the COVID
Protocols [which consider individuals who cannot perform with a mask to be a ‘direct threat to
the health and safety of the individual and others’]). But, as analyzed earlier, Gallagher is a bass
player who could perform with a mask, who thus would not fit within the “direct threat”
provision in the Protocols if tested.
40
cause of action for punitive damages under Hawaii law. See, e.g., Ross v. Stouffer
Hotel Co., 76 Haw. 454, 466, 879 P.2d 1037, 1049 (1994) (“[A] claim for punitive
damages is not an independent tort, but is purely incidental to a separate cause of
action.”); Smallwood v. NCsoft Corp., 730 F. Supp. 2d 1213, 1236 (D. Haw. 2010)
(same). The Motion to Dismiss is well-taken as to Count V.
To be clear, the HSO has not argued that the facts as alleged do not
justify an award of punitive damages—the court has not addressed such
allegations. Nor has it argued that punitive damages are not an available remedy
against a private employer under Title VII. See, e.g., Kolstad v. Am. Dental Assn.,
527 U.S. 526, 534 (1999) (discussing availability of punitive damages against
private parties under Title VII in 42 U.S.C. § 1981a(b)(1)). In short, punitive
damages remain as a possible remedy even if there is no independent cause of
action as alleged in Count V of Gallagher’s Complaint. To that extent, HSO’s
Motion to Dismiss is GRANTED as to Count V. Count V is DISMISSED as a
separate cause of action, although the factual allegations supporting an award of
punitive damages remain.
V. CONCLUSION
For the foregoing reasons, the Motion to Dismiss, ECF No. 11, is
GRANTED in part and DENIED in part. It is GRANTED in part as to certain
41
retaliation allegations. And it is GRANTED as to Count V alleging punitive
damages alone. It is DENIED in all other respects.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 27, 2024.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Gallagher v. Hawaii Symphony Orchestra, Civ. No. 23-00395 JMS-RT, Order Granting in Part
and Denying in Part Defendant’s Motion to Dismiss Complaint, ECF No. 11
42
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