Ford v. Blue Cross Blue Shield of Michigan

Filing 18

OPINION AND ORDER denying as moot 11 Motion for Judgment; granting 13 Motion for Leave to File Amended Complaint. Signed by District Judge Judith E. Levy. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Sherry Ford,
Plaintiff,
v.
Blue Cross Blue Shield of
Michigan,

Case No. 23-12070
Judith E. Levy
United States District Judge
Mag. Judge Elizabeth A.
Stafford

Defendant.
________________________________/
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO FILE AMENDED COMPLAINT [13] AND DENYING
AS MOOT DEFENDANT’S MOTION FOR JUDGMENT ON THE
PLEADINGS [11]
Before the Court is Defendant Blue Cross Blue Shield of Michigan’s
(“BCBSM”) motion for judgment on the pleadings (ECF No. 11) and
Plaintiff Sherry Ford’s motion for leave to file her amended complaint.
(ECF No. 13.)
Plaintiff filed the complaint on August 14, 2023, alleging that
BCBSM violated Title VII and Michigan’s Elliott-Larsen Civil Rights Act
(“ELCRA”). (ECF No. 1.) On February 21, 2024, Defendant filed a motion
for judgment on the pleadings. (ECF No. 11.) Shortly after, Plaintiff filed

a motion for leave to file an amended complaint on March 12, 2024. (ECF
No. 13.) Both motions have been fully briefed. (ECF Nos. 14, 15, 16, 17.)
For the reasons set forth below, Plaintiff’s motion for leave to file
an amended complaint is granted (ECF No. 13), and Defendant’s motion
for judgment on the pleading is denied as moot. (ECF No. 11.)
I.

Factual Background

Plaintiff worked as a Performance Evaluation Specialist for
BCBSM for over 20 years until her termination on January 5, 2022. (ECF
No. 1, PageID.3.) On November 1, 2021, BCBSM announced that all
employees and contractors must be vaccinated against COVID-19 by
December 8, 2021. (Id.) After this announcement, Plaintiff submitted a
religious accommodation request seeking an exemption from Defendant’s
COVID-19 vaccination requirement. (Id. at PageID.1, 6.) In her
complaint, Plaintiff described her religious beliefs as “seek[ing] to make
all decisions, especially those regarding vaccination and other medical
decisions, through prayer.” (Id. at PageID.6.) Her request for an
exemption was denied. (Id.) Plaintiff did not receive the COVID-19
vaccine; as a result, Defendant placed her on unpaid leave and ultimately
terminated her employment on January 5, 2022. (Id.)
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In her proposed amended complaint, Plaintiff includes additional
details on her religious beliefs and how these beliefs conflicted with
BCBSM’s COVID-19 vaccine requirement. (See ECF No. 13-1,
PageID.163–168.) These details include that she “prayed to God for
wisdom and discernment about taking the COVID-19 vaccine,” she
“believes that her body is a temple for the Holy Spirit,” and “she is
religiously obligated to keep her body and immune system as God
intended.” (Id. at PageID.164–165.) Plaintiff believes “it would be a sin
to alter her natural God-given immunity by taking any vaccine, which
would indicate distrust in God’s healing power.” (Id. at PageID.165
(emphasis in original).) Plaintiff also asserts that “she has not received a
vaccine in over 15 years and objects to all vaccines in accordance with
Psalm 31:14 and Isaiah 55:8-9.” (Id.)
Finally, Plaintiff’s proposed amended complaint adds allegations
regarding BCBSM’s Director of Employee and Labor Relations, Bart
Feinbaum. She alleges that he made statements which constitute “direct
evidence of discrimination and a blanket policy to deny religious
accommodation beliefs.” (Id. at PageID.170.) According to the proposed
amended complaint, Mr. Feinbaum stated in a human resources meeting
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that “he believed that the three major religions (Christianity, Judaism,
and Islam) all allowed for vaccination against COVID-19,” that “the goal
of Defendant’s interview process was to ‘pressure’ employees to get
vaccinated against COVID-19,” and that “Defendant was not allowed to
accept ‘all’ religious accommodation requests.” (Id.)
II.

Legal Standard

A party seeking to amend a claim, when such an amendment would
not be as a matter of course, “may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should
freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave
should be denied where the amendment demonstrates defects “such as
undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.” Brown v. Chapman, 814 F.3d
436, 443 (6th Cir. 2016) (quoting Foman v. Davis, 371 U.S. 178, 182
(1962)). “A proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.” Parchman v. SLM Corp.,

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896 F.3d 728, 738 (6th Cir. 2018) (quoting Beydoun v. Sessions, 871 F.3d
459, 469 (6th Cir. 2017)).
When deciding a motion to dismiss under Federal Rule of Procedure
12(b)(6), the Court must “construe the complaint in the light most
favorable to the plaintiff and accept all allegations as true.” Keys v.
Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A plaintiff’s claim is facially plausible
“when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. A plausible claim need not contain “detailed factual
allegations,” but it must contain more than “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007).
III. Analysis
Plaintiff brings a failure-to-accommodate claim and a disparate
treatment claim under Title VII (Counts I and II), and a disparate
treatment claim and intentional discrimination claim under ELCRA
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(Count III). (ECF No. 13-1, PageID.172–178.) Defendant argues that
Plaintiff’s proposed amended complaint is futile and should not be filed
because (1) Plaintiff has not alleged a sincerely held religious belief,
which is fatal for all three counts, and (2) Plaintiff has not alleged
sufficient facts to establish a claim for disparate treatment, which is fatal
for Counts II and III. (ECF No. 15, PageID.229–240.)
A.

Plaintiff’s sincerely held religious belief

Defendant first argues that Plaintiff’s proposed amended complaint
fails to allege a sincerely held religious belief. Defendant argues that the
Court should not construe her beliefs as sincerely held religious beliefs
because it would result a “blanket privilege,” which is a “a limitless
excuse for avoiding all obligations.” (ECF No. 15, PageID.232 (quoting
Lucky v. Landmark Medical of Michigan, Case No. 23-cv-11004, 2023 WL
7095085, at *6 (E.D. Mich. Oct. 26, 2023)).) Defendant also characterizes
Plaintiff’s beliefs as medical, not religious. (Id. at PageID.234 (“[W]hen a
plaintiff . . . expresses an opposition to polluting or harming the body, her
belief that the ‘body is a temple’ is a medical concern, not a religious
belief.”).) The Court disagrees and finds that Plaintiff’s beliefs, as alleged
in the proposed amended complaint, are religious.
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Defendant agrees that Plaintiff’s alleged beliefs are very similar to,
if not the same as, the beliefs described in Lucky, 2023 WL 7095085. (ECF
No. 15, PageID.232 (“Plaintiff’s allegations here are functionally the
same as the allegations pled in Lucky.”).) Like Plaintiff, the plaintiff in
Lucky resisted a vaccination requirement due to a belief based in her
Christian faith: that her body is a “temple” for God and that the vaccine
would go against God’s design for her body. (ECF No. 13-1, PageID.164–
165); Lucky, 2023 WL 7095085, at *1 n.2. In Lucky, the district court held
that the complaint should be dismissed for failure to state a claim
because the plaintiff had not alleged a religious belief. Id. at *7 (holding
that “her religion had a specific tenant or principle that does not permit
her to be vaccinated” and only offered “naked assertions devoid of further
factual enhancement”).
This decision was recently reversed. Lucky v. Landmark Medical of
Michigan, P.C., 103 F.4th 1241 (6th Cir. 2024). The Sixth Circuit held
that the plaintiff’s allegations were sufficient to establish that “her
refusal to receive the vaccine was an ‘aspect’ of her religious observance
or belief” and that the plaintiff need not explain how “her religion has a
specific tenet or principle that does not permit her to be vaccinated.” Id.
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at 1243–44 (quoting Lucky, 2023 WL 7095085, at *7). Here, Defendant’s
arguments now contradict Sixth Circuit precedent. Id.; see also Sturgill
v. Am. Red Cross, __ F.4th __, No. 24-1011, 2024 WL 3886589, at *4 (6th
Cir. Aug. 21, 2024) (holding that similar allegations are clearly religious).
Like Lucky, Plaintiff’s beliefs are religious. Her amended complaint
“[pleads] facts supporting an inference that her refusal to be vaccinated
for [COVID-19] was an ‘aspect’ of her ‘religious observance’ or ‘practice’
or ‘belief.’” Lucky, 103 F.4th at 1243 (quoting 42 U.S.C. § 2000e(j)). She
is a “devout Christian” and believes that she is “religiously obligated to
keep her body and immune system as God intended,” and that “it would
be a sin to alter her natural God-given immunity by taking any vaccine.”
(ECF No. 13-1, PageID.164–165.) It is clear that Plaintiff’s “refusal to
receive the vaccine [is] an ‘aspect’ of her religious observance or belief.”
Lucky, 103 F.4th at 1243.
As such, the Court finds that Plaintiff has sufficiently alleged a
sincerely held religious belief.
B.

Disparate treatment under Title VII and ELCRA

Defendant argues that Plaintiff’s disparate treatment claims under
Title VII and ELCRA are futile because she does not sufficiently allege
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circumstantial or direct evidence of Defendant’s discriminatory motive.
(ECF No. 15, PageID.235, 240.) In order to state a claim of disparate
treatment under Title VII and ELCRA, Plaintiff must plausibly allege
that Defendant treated her differently than other employees because of
her religion. Savel v. MetroHealth Sys., 96 F.4th 932, 943 (6th Cir. 2024);
Humenny v. Genex Corp, 390 F.3d 901, 906 (6th Cir. 2004) (“Cases
brought pursuant to the ELCRA are analyzed under the same
evidentiary framework used in Title VII cases.”). Generally, plaintiffs
“may establish a case of unlawful discrimination through either direct or
circumstantial evidence.” White v. Baxter Healthcare Corp., 533 F.3d 381,
391 n.5 (6th Cir. 2008).
i.

Circumstantial Evidence

According to Defendant, Plaintiff’s proposed amended complaint
does not sufficiently allege circumstantial evidence of Defendant’s
discriminatory motive because she does not allege that “any similarly
situated employee was treated more favorably.” (ECF No. 15,
PageID.235.) Defendant contends that Plaintiff does not identify a
religion or a religious belief that it “favored” over Plaintiff’s beliefs, nor

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similarly situated employee who was treated more favorably. (Id. at
PageID.237–238.)
First, to the extent that Defendant argues that Plaintiff’s amended
complaint fails to plead a prima facie case of employment discrimination,
that argument must be rejected. “A plaintiff does not have to allege
specific facts establishing a prima facie case of discrimination in their
complaint.” Savel, 96 F.4th at 943. As such, Plaintiff need not identify
specific, similarly situated employees who were treated more favorably,
as long as the Court is able to reasonably infer that Defendant treated
her differently than other employees due to her religious beliefs. See
Spencer v. Blue Cross Blue Shield of Michigan, No. 23-CV-11913, 2024
WL 3755979, at *4–5 (E.D. Mich. Aug. 12, 2024).
The Court finds that Plaintiff’s proposed amended complaint
plausibly alleges that Defendant treated her differently than other
employees due to her religious beliefs. Plaintiff identifies that Defendant
“favored” those with different beliefs over Plaintiff. (ECF No. 13-1,
PageID.172, 177.) The proposed amended complaint states that she was
terminated “based on Defendant’s own subjective standard of religiosity,”
that Defendant discriminated against her “unique sincerely held
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spiritual beliefs,” and that Defendant “determined that some religious
beliefs of its employees were valid while others were bogus.” (Id. at
PageID.179–180.)
Several other courts determined that similar, if not nearly
identical, allegations were sufficient to support an inference that other,
similarly situated employees were treated differently. See Spencer, 2024
WL 3755979, at *4–5; Williams v. Blue Cross Blue Shield of Michigan,
No. 23-CV-12066, 2024 WL 1994258, at *5 (E.D. Mich. May 6, 2024);
Horne v. Pentastar Aviation, LLC, No. 23-11439, 2024 WL 1607017, at *9
(E.D. Mich. Apr. 12, 2024) (holding that the plaintiff sufficiently alleged
a disparate treatment claim based on the defendant’s treatment of other,
similarly-situated employees with different religious beliefs). Further,
Defendant acknowledges that it “granted many religious accommodation
requests,” (ECF No. 15, PageID.248 (emphasis in original)), signifying
that some religious accommodation requests were granted and others
were not.
As such, the Court concludes that Plaintiff’s proposed amended
complaint sufficiently alleges circumstantial evidence of Defendant’s
discriminatory motive.
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ii.

Direct Evidence

Additionally, the Court finds that Plaintiff’s proposed amended
complaint sufficiently alleges direct evidence of disparate treatment.
Plaintiff states that Defendant’s Director of Employee and Labor
Relations, Mr. Feinbaum, “was responsible for deciding which employees
received religious and medical accommodations,” but instructed
“employees who would be conducting the religious accommodation
interviews that Defendant was not allowed to accept ‘all’ religious
accommodation requests.” (ECF No. 13-1, PageID.171.) Mr. Feinbaum
allegedly asserted in that same meeting that “after performing personal
research . . . he believed that the three major religions (Christianity,
Judaism, and Islam) all allowed for vaccination against COVID-19,” and
that “the goal of Defendant’s interview process was to ‘pressure’
employees to get vaccinated against COVID-19.” (Id.)
According to Defendant, these allegations “require far-fetched,
impermissible inferences to arrive at ‘direct evidence’ of discriminatory
intent.” (ECF No. 15, PageID.242 (emphasis in original).) The Court
disagrees. Plaintiff claims that she was discriminated against because of
her different religious beliefs, and the alleged statements from the
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Director of Employee and Labor Relations display disregard or animus
towards certain religious beliefs. See Williams, 2024 WL 1994258, at *5
(evaluating the same statements from Mr. Feinbaum).
Defendant also argues that Mr. Feinbaum’s statements cannot
constitute direct evidence because he was not a decision-maker. (ECF No.
15, PageID.244–225.) This argument is not convincing. The proposed
amended complaint claims that Mr. Feinbaum is the Director of
Employee and Labor Relations, was responsible for determining religious
and medical accommodations, and instructed employees with regard to
the religious accommodation interviews. (ECF No. 13-1, PageID.170.)
The Court can reasonably infer that Mr. Feinbaum was involved in the
decision to terminate Plaintiff’s employment.1
As such, Plaintiff’s proposed amended complaint sufficiently alleges
a disparate treatment claim under both Title VII and ELCRA.

Defendant contends that Mr. Feinbaum cannot be a decisionmaker because
Plaintiff’s religious accommodations interview was conducted by Kaitlyn Mardeusz
and Devin Scott. (ECF No. 15, PageID.244 n.9 (citing ECF No. 15-2 (notes from
Plaintiff’s religious accommodations interview)).) Even if the Court considered this
information, Defendant’s argument would not prevail because the interview notes
only demonstrate that Mardeusz and Scott conducted the interview, not that they
made the decision to terminate Plaintiff’s employment.
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IV.

Conclusion

For the reasons set forth above, the Court GRANTS Plaintiff’s
motion for leave to file an amended complaint. (ECF No. 13.) Defendant’s
motion for judgment on the pleadings is DENIED as MOOT. (ECF No.
11.)
IT IS SO ORDERED.
Dated: August 29, 2024
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 29, 2024.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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