Miller v. Charleston Area Medical Center

Filing 21

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant's 9 MOTION to Dismiss; Counts II, IV, and V are dismissed with prejudice; Counts I and III and Plaintiffs religious discrimination claims for failure to accommoda te under Title VII and the WVHRA remain pending, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 11/14/2023. (cc: counsel of record; any unrepresented party) (lca) (Modified on 11/14/2023 to update document type to opinion) (ts).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CHARLES MILLER,
Plaintiff,
v.

CIVIL ACTION NO. 2:23-cv-00340

CHARLESTON AREA MEDICAL CENTER,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Charleston Area Medical Center Inc.’s
(“CAMC”) Motion to Dismiss [ECF No. 9]. Plaintiff Charles Miller responded in
opposition, [ECF No. 14], and CAMC replied [ECF No. 17]. For the reasons stated
herein, CAMC’s Motion is GRANTED in part, and DENIED in part.
I.

Background
Mr. Miller worked as a respiratory therapist at CAMC for over 30 years.

[ECF No. 1, ¶¶ 7, 13]. In September of 2021, to comply with a federal Centers for
Medicaid and Medicare Services (“CMS”) mandate, CAMC implemented a policy
requiring all employees to be fully vaccinated against COVID-19. Id. ¶ 14. CAMC’s
mandate provided employees the opportunity to request exemptions based on
religious and/or medical objections to receiving the vaccine. [ECF No. 9-1, at 2
(“Anyone requesting an exemption/accommodation must submit a completed

‘Request for Exemption from COVID-19 Vaccination’ form by Sept. 8. . . . These
forms will be reviewed and the employee notified if approved.”)]; see also [ECF No.
9-2 (explaining the vaccination policy and providing a link to an exemption request
form)]. CAMC informed employees that they would be terminated if they were not
vaccinated or had not received an exemption by February 23, 2022. [ECF No. 1, ¶
27].
Mr. Miller submitted a request seeking both a religious and medical
exemption on September 11, 2021. [ECF No. 1-1]. His religious exemption request—
as repeated in his Complaint—explained his beliefs regarding the vaccine. Mr.
Miller stated in his exemption request that the vaccine uses “fetal cell lines, which
originated from aborted fetuses” and accepting the vaccine would make him
“complicit in an action that offends [his] religious faith.” [ECF No. 1, ¶¶ 18, 19]. He
also alleges that being coerced to “take a medical treatment violates his religious
faith and his right of conscience.” Id. ¶ 20. Mr. Miller then voiced his belief that the
vaccine is “gene therapy with the potential to alter a recipient’s DNA, which is a
violation of God’s will and his bodily autonomy.” Id. ¶ 21. Last, he expressed views
that CAMC’s mandate violates (1) informed consent and the Nuremberg Code; (2)
an employee’s right to privacy; and (3) the Americans with Disabilities Act. Id. ¶ 25.
With respect to his medical exemption request, CAMC requested an affidavit
from Mr. Miller’s physician about his medical status, and Mr. Miller provided a
signed letter to CAMC from Dr. Gregory Harrah. Id. at 26; [ECF No. 9-4]. Dr.
Harrah stated that Mr. Miller “has multiple medical problems and most recently
2

underwent coronary artery surgery” and thus, “[d]ue to his current situation is (sic)
medically necessary that he not receive Covid vaccine at this time.” [ECF No. 9-4, at
1].
CAMC denied both of Mr. Miller’s exemption requests. On February 23, 2022,
Mr. Miller submitted a second exemption request via a notarized letter stating that
he strongly does not believe in gene therapy, and he cannot in good conscience and
in accord with his religious faith receive the COVID vaccine. [ECF No. 1, ¶ 29];
[ECF No. 1-2]. His supervisor notified him on this same day that he would be
terminated if he remained unvaccinated, and on February 24, 2022—the day after
the vaccine mandate went into effect—Plaintiff was terminated from his position at
CAMC. [ECF No. 1, ¶ 33].
Following his termination from CAMC, Mr. Miller filed a complaint with the
United States Equal Employment Opportunity Commission (“EEOC”) alleging both
religious and disability discrimination. Id. ¶ 34. The EEOC gave Plaintiff notice of a
right to sue on January 19, 2023. Id. He filed the instant action on April 19, 2023.
In his Complaint, Mr. Miller alleges five causes of action against CAMC: (1)
religious discrimination in violation of Title VII; (2) disability discrimination in
violation of the Americans with Disabilities Act (“ADA”); (3) religious discrimination
in violation of the West Virginia Human Rights Act (“WVHRA”); 1 (4) disability
discrimination, also in violation of the WVHRA; and (5) a violation of West Virginia
Plaintiff refers to this Act as the “Civil Rights Act” in his Complaint, but the short title is actually
“The West Virginia Human Rights Act.” W. Va. Code § 5-11-1.
1

3

Code Section 16-3-4b, which provides for exemptions to compulsory immunization
against COVID-19 as a condition of employment. [ECF No. 1, at 8, 9, 12, 14].
On July 5, 2023, CAMC filed a motion to dismiss the complaint in its
entirety, alleging that Mr. Miller has failed to state any claim upon which relief can
be granted. [ECF No. 9]. Plaintiff responded in opposition, 2 [ECF No. 14], and
CAMC replied, [ECF No. 17]. The matter is now ripe for review.
II.

Legal Standard
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a

complaint or pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This
standard “does not require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

In Plaintiff’s response, he urges the court to apply a liberal construction to his Complaint because
“actions brought under civil rights laws are ‘liberally construed by reviewing courts.’” [ECF No. 14,
at 3 (quoting U.S. ex rel. Birnbaum v. Dolan, 452 F.2d 1078 (3d Cir. 1971))]. Plaintiff also cites three
other cases that he alleges say the same. However, Plaintiff fails to explain to the Court that in
Dolan, the Third Circuit liberally construed the complaint because civil rights actions “are often
brought by persons who have had little or no legal assistance in preparing their petitions.” Dolan,
452 F.2d at 1079. Further, when quoting Johnson v. State of California, Plaintiff excluded the
beginning—and most important part—of the quote, which states “the Supreme Court has instructed
the federal courts to liberally construe the ‘inartful pleading’ of pro se litigants, . . . and we have
emphasized that the rule of liberal construction is ‘particularly important in civil rights cases.’” 207
F.3d 650, 653 (9th Cir. 2000) (emphasis added) (internal citations omitted). Last, Plaintiff fails to
cite any Fourth Circuit case law, and in this Circuit, the rule is that “a pro se litigant’s pleadings are
to be liberally construed.” (Abdissa v. UNC Chapel Hill, 636 F. App’x 101, 101 (4th Cir. 2016) (giving
liberal construction to a pro se pleading when the Plaintiff alleged Title VII violations); see also
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). As Mr. Miller is represented by counsel in this
matter, this court will not construe his pleadings using the standard reserved for pro se litigants.
2

4

(2007)). “When ruling on a motion to dismiss, courts must accept as true all of the
factual allegations contained in the complaint and draw all reasonable inferences in
favor of the plaintiff.” Farnsworth v. Loved Ones in Home Care, LLC, No. 2:18-CV01334, 2019 WL 956806, at *1 (S.D. W. Va. Feb. 27, 2019) (citing E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)).
To survive a motion to dismiss, the plaintiff's factual allegations, taken as
true, must “state a claim to relief that is plausible on its face.” Robertson v. Sea

Pines Real Est. Co., 679 F.3d 278, 288 (4th Cir. 2012) (quoting Iqbal, 556 U.S. at
678). The plausibility standard is not a probability requirement, but “asks for more
than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556). To achieve facial plausibility, the plaintiff
must plead facts allowing the court to draw the reasonable inference that the
defendant is liable, moving the claim beyond the realm of mere possibility. Id. at
570. Mere “labels and conclusions” or “formulaic recitation[s] of the elements of a
cause of action” are insufficient. Twombly, 550 U.S. at 555. Thus, “a complaint is to
be construed liberally so as to do substantial justice.” Hall v. DIRECTV, LLC, 846
F.3d 757, 777 (4th Cir. 2017).
III.

Analysis

As stated, Mr. Miller alleges two claims for religious discrimination under
Title VII and the WVHRA. He also argues disability discrimination under the ADA

5

and the WVHRA. Last, he alleges a violation of W. Va. Code § 16-3-4b. I will discuss
each in turn.
A. Religious Discrimination under Title VII
Mr. Miller first argues that he “asserted bona fide religious beliefs that
conflicted with CAMC’s mandatory vaccine policy,” and CAMC violated Title VII by
failing to offer a reasonable accommodation for his religious beliefs and
subsequently terminating his employment based on those beliefs. [ECF No. 1, ¶¶
42–49]. Mr. Miller also alleges that submitting religious exemption requests was
protected activity, and CAMC retaliated against him “by denying his exemption
requests and terminating him.” Id. ¶¶ 50–52. I will examine each of these
allegations.
1. Failure to Accommodate
Title VII of the Civil Rights Act provides that one may prove discrimination
in employment by showing disparate treatment, or “intentional discrimination.”

Abeles v. Metro. Wash. Airports Auth., 676 F. App’x 170, 174 (4th Cir. 2017). The
Act “prohibits an employer from discriminat[ing] against any individual because of
such individual’s . . . religion.” Id. (quoting 42 U.S.C. § 2000e–2(a)(1)) (cleaned up)
(internal quotations omitted). Religion is defined 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.” 42 U.S.C. § 2000e(j). This

6

definition includes a requirement that an employer “accommodate” religious beliefs,
and as such, a plaintiff can bring a claim based on failure to accommodate.

Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1018 (4th Cir. 1996) (“[A]n
employer must, to an extent, actively attempt to accommodate an employee’s
religious expression or conduct.”).
Religious accommodation cases allow employees to establish a claim even if
they cannot show that “other (unprotected) employees were treated more favorably
or cannot rebut an employer’s legitimate, non-discriminatory reason” for a
discharge. Id. Thus, “[t]o establish a prima facie religious accommodation claim, a
plaintiff must establish that: ‘(1) he or she has a bona fide religious belief that
conflicts with an employment requirement; (2) he or she informed the employer of
this belief; (3) he or she was disciplined for failure to comply with the conflicting
employment requirement.’” Id. at 1019 (quoting Philbrook v. Ansonia Bd. of Educ.,
757 F.2d 4765, 481 (2d Cir. 1985)).
Title VII does not, however, protect secular beliefs, and an employer has no
duty to accommodate such preferences. See Dachman v. Shalala, 9 F. App’x 186,
192 (4th Cir. 2001) (citing Tiano v. Dillard Dep’t Stores, Inc., 139 F.3d 679, 682 (9th
Cir.1998)); see also Ellison v. Inova Health Care Servs., No. 1:23-cv-00132, 2023 WL
6038016, at *4 (E.D. Va. Sept. 14, 2023) (“Title VII does not protect just any belief.
To be protected, an employee’s belief must be religious in nature.”). Courts—which
are not in a position to “question the centrality of particular beliefs or practices of

7

faith, or the validity of particular litigants’ interpretations of those creeds,”

Hernandez v. Comm’r, 490 U.S. 680, 699 (1989)—should instead determine whether
an individual’s purported beliefs are both sincerely held and religious in nature.

Ellison, 2023 WL 6038016, at *4 (citing Welsch v. United States, 398 U.S. 333, 339
(1970)). In analyzing whether beliefs are religious in nature, courts in this circuit
have analyzed whether the beliefs “address fundamental and ultimate questions . . .
[of] deep and imponderable matters.” Id. (citing Africa v. Com. of Pa., 662 F.2d 1025
(3d Cir. 1981); Foshee v. AstraZeneca Pharms. LP, No. SAG-23-00893, 2023 WL
6845425, at *4 (D. Md. Oct. 17, 2023). Thus, in order to determine whether Mr.
Miller has sufficiently made a prima facie case for failure to accommodate, I will
focus on only his religious assertions and not on other personal or scientific beliefs.
In Mr. Miller’s religious exemption requests, he stated that “any coerced
medical treatment goes against my religious faith and the right of conscience to
control one’s own medical treatment.” [ECF No. 1-1, at 2]. 3 However, “beliefs
amounting to a declaration that an employee has the right to make unilateral
decisions do not constitute religious beliefs, even where religion is expressly invoked
in communicating the beliefs.” Foshee, 2023 WL 6845425, at *4; see also Finkbeiner

v. Geisinger Clinic, 623 F. Supp. 3d 458, 465 (M.D. Penn. 2022) (“[Plaintiff’s belief
that she has a ‘God given right to make [her] own choices’ . . . would amount to a

His other arguments, which explain his beliefs about informed consent, Nuremberg Code violations,
ADA violations, and potential tort liability for battery. [ECF No. 1-1, at 3–4], are based on personal
and secular beliefs and do not go towards a sincerely held religious belief. As such, the court need not
consider them.
3

8

‘blanket privilege’ and a ‘limitless excuse for avoiding all unwanted . . .
obligations.”) (quoting Africa, 662 F.2d at 1030–31) (second alteration in original).
Mr. Miller also argued that “[p]artaking in a vaccine made from aborted
fetuses makes [him] complicit in an action that offends [his] religious faith” because
manufacturers have “developed and confirmed their vaccines use fetal cell lines.”
[ECF No. 1-1, at 2]; see also [ECF No. 1, ¶ 17 (“Mr. Miller is a member of the United
Methodist Church . . . [and] holds religious objections to the use of aborted fetal
cells in the production of all COVID-19 vaccines.”)]. There is nothing at this stage to
suggest this belief is not sincerely held, and Mr. Miller has sufficiently pleaded a
nexus between his belief and his religion. See, e.g., Gardner-Alfred v. Fed. Rsrv.

Bank of N.Y., 651 F. Supp. 3d 695, 722 (S.D.N.Y. 2023) (finding that the complaint
“alleges a nexus between [Plaintiff’s] religious beliefs . . . and her refusal to receive
the vaccine” because she believed the injections “involve the use of aborted fetal
cells”).
CAMC argues that Mr. Miller does not have a bona fide religious belief
because his letter was “a generic covid letter” that “was not drafted by him
specifically.” [ECF No. 10, at 6]. Instead, CAMC alleges that he copied a letter
verbatim that he found on the internet and submitted it as his own exemption
request “as if the generic letter set forth his unique, religious beliefs and was not
just something he happened to find online.” Id. at 6–7. 4 I do not find this reasoning
CAMC also points to an alleged discrepancy between Mr. Miller’s bona fide religious belief in his
exemption letter and statements made to an administrative law judge (“ALJ”), and CAMC attached
4

9

convincing. The fact that Mr. Miller may have found this letter online does not
prove that he does not believe in the contents of the letter. As such, Mr. Miller’s
failure to accommodate claim under Title VII need not be dismissed. 5
2. Retaliation
Mr. Miller next alleges that “CAMC retaliated against Mr. Miller by denying
his exemption requests and terminating him.” [ECF No. 1, ¶ 52]. Title VII’s antiretaliation provision “prevents an employer from interfering (through retaliation)
with an employee’s efforts to secure or advance enforcement of the Act’s basic
guarantees.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006)
(citing 42 U.S.C. § 2000e–3(a)). To establish a claim under Title VII for retaliation, a
plaintiff must demonstrate “(1) that [he] engaged in a protected activity, as well as
(2) that [his] employer took an adverse employment action against [him], and (3)
that there was a causal link between the two events.” DeMasters v. Carilion Clinic,
796 F.3d 409, 416 (4th Cir. 2015) (quoting Boyer–Liberto v. Fontainebleau Corp.,
786 F.3d 264, 281 (4th Cir. 2015)). “The text, structure, and history of Title VII
demonstrate that a plaintiff making a retaliation claim . . . must establish that his
this transcript to its motion to dismiss. See [ECF No. 9-5]. At the motion to dismiss stage, courts may
rely on evidence even if extraneous to the complaint if the evidence is “integral to and explicitly
relied on in the complaint and [if] the plaintiffs do not challenge its authenticity.” Am. Chiropractic
Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004). Although Mr. Miller does not
challenge the exhibit’s authenticity, it is not proper for the court to consider this exhibit at the
motion to dismiss stage. Mr. Miller stated his religious beliefs in his Complaint using support from
his exemption requests, and the Complaint does not make mention of nor “explicitly rel[y] on” the
hearing in front of the ALJ. Considering such exhibit would convert this motion to one for summary
judgment, which is not appropriate at this stage. See Kerr v. Marshall Univ. Bd. of Governors, 824
F.3d 62, 68 n.1 (4th Cir. 2016).
5 At this stage, the Court expresses no opinion on whether the religious exemption would pose an
undue hardship on Defendant.

10

or her protected activity was a but for cause of the alleged adverse action by the
employer.” Univ. of Texas S.W. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013).
Here, Mr. Miller argues that his protected activity was submitting the
religious exemption request to CAMC, wherein he expressed his legal concerns with
the vaccine mandate. However, the Court need not address whether this activity is
protected because Mr. Miller failed to establish a causal connection between his
accommodation request and his termination from CAMC. His choice not to get
vaccinated by the February 23, 2022, deadline, would have resulted in his
subsequent termination whether or not he submitted such exemption requests. As
such, he cannot make out a retaliation claim.
B. Religious Discrimination in Violation of the WVHRA
Next, Mr. Miller argues that he asserted bona fide religious beliefs, and by
failing to offer any accommodations and by denying his exemption request, CAMC
discriminated against him on the basis of his religious beliefs. [ECF No. 1, ¶¶ 67–
73]. CAMC again argues that Mr. Miller does not have a bona fide religious belief.
[ECF No. 10, at 6].
The WVHRA makes it unlawful for employers to discriminate against
individuals if the individual is “able and competent to perform the services
required.” W. Va. Code § 5-11-9. West Virginia’s Code of State Rules provides that
employers cannot discriminate “on the basis of religion, . . . against an individual
concerning the terms, conditions, or privileges of employment unless it can be

11

shown that the employer cannot reasonably accommodate an employee's . . .
religious observance or practice without undue hardship on the conduct of its
business.” W. Va. Code St. R. § 77-3-3. The burden to prove that an accommodation
imposes an undue hardship is on the employer, and “resolution of such cases
depends on specific factual circumstances.” Id.
Here, I have found that Mr. Miller has pleaded a bona fide religious belief by
asserting that the use of aborted fetal cells violates his religion. Furthermore,
CAMC has not argued—but reserved the right to assert—that it would suffer an
undue hardship if Mr. Miller were permitted to work unvaccinated. See [ECF No.
10, at n.4]. As such, this claim is not dismissed.
C. Disability Discrimination Under the ADA
Mr. Miller next alleges that he was discriminated against based on a
“perceived

disability”

of

“being

unvaccinated”

because

“CAMC

regarded

unvaccinated individuals as being ‘disabled’ and unable to perform the duties of
their employment.” [ECF No. 1, ¶¶ 60, 61]. He then alleges that “virtually every
employer in America has shown that reasonable accommodations and alternatives
to vaccination” exist and that CAMC cannot show that any alternative, lessintrusive accommodations would cause undue hardship. Id. ¶ 64–66. Mr. Miller also
asserts that CAMC did not engage in an interactive process or conduct an
individualized assessment of his “unique circumstances.” Id. ¶ 59.

12

CAMC argues that Mr. Miller cannot establish a prima facie case under the
ADA as he is neither disabled nor regarded as having a disability. [ECF No. 10, at
10–11]. CAMC claims that Mr. Miller provides no evidence that he was perceived as
disabled, and to hold otherwise would lead to the “absurd result that CAMC would
have to consider its entire workforce, prior to the CMS mandate, to be disabled.” Id.
at 13. Moreover, CAMC asserts that Mr. Miller did not—and cannot—allege that he
was treated differently because the vaccine mandate was facially neutral and
applied to all CAMC employees. Id. at 17. 6
The ADA provides that “no covered entity shall discriminate against a
qualified individual on the basis of disability in regard to . . . the hiring,
advancement, or discharge of employees, . . . and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112. To establish a prima facie case for
wrongful discharge under the ADA, a plaintiff must demonstrate that “(1) he is
within the ADA’s protected class; (2) he was discharged; (3) at the time of his
discharge, he was performing the job at a level that met his employer’s legitimate
expectations; and (4) his discharge occurred under circumstances that raise a
reasonable inference of unlawful discrimination.” Haulbrook v. Michelin N. Am.,

CAMC also argues that it has a legitimate, non-discriminatory reason for denying both of Mr.
Miller’s exemption requests. [ECF No. 10, at 14–17]. However, this issue is not properly before the
court at this time because a plaintiff “is not generally required to plead facts that specifically rebut a
defendant’s legitimate, nondiscriminatory reasons.” Ryan-White v. Blank, 922 F. Supp. 2d 19, 23
(D.D.C. 2013); see also Reynoso v. All Foods, Inc., 908 F. Supp.2d 330, 343 (E.D.N.Y. 2012) (finding
that a defendant’s showing of a legitimate, non-discriminatory reason “is an issue to be decided on
summary judgment, not at the motion to dismiss stage”); Bledsoe v. Tenn. Valley Auth. Bd. of Dirs.,
No. 1:20-cv-00029, 2020 WL 13064724, at *5 (E.D. Tenn. Sept. 3, 2020) (noting that a nondiscriminatory reason is “properly addressed at the summary judgment stage”).
6

13

252 F.3d 696, 702 (4th Cir. 2001) (citing Ennis v. Nat’l Ass’n of Bus. & Educ. Radio,
53 F.3d 55, 58 (4th Cir. 1995)). To be within the ADA’s protected class, one must be
“a qualified individual with a disability.” Id. (citing 42 U.S.C. § 12112). A disability
means “a physical or mental impairment that substantially limits one or more
major life activities . . . or being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). Working is an example of a major life activity. Id. § 12102(2)(A). An
individual is “regarded as having such an impairment” if he establishes that he has
been subjected to a prohibited action due to an actual or perceived physical or
mental impairment, “whether or not the impairment limits or is perceived to limit a
major life activity.” Id. § 12102(3). Here, Mr. Miller has only alleged that CAMC
discriminated against him because he was “regarded as” having a disability: “being
unvaccinated.” [ECF No. 1, ¶ 60].
In examining Mr. Miller’s disability discrimination claim against CAMC, I
must first address deficiencies in the party’s pleading as they are of particular
concern to the Court. First, in his Complaint, Mr. Miller seemingly accuses a third
party, 3M, of disability discrimination. See [ECF No. 1, ¶ 62 (“CAMC discriminated
against Mr. Miller by termination if he failed to receive the COVID-19 vaccine, a
‘condition’ regarded as a disability under 3M’s policy.”) (emphasis added)]; see also

id. ¶ 63 (“Plaintiff had been successfully performing his job for months with no
apparent danger to fellow employees or 3M’s operation.”). Plaintiff references 3M a
third time, see id. ¶ 41, yet Mr. Miller is not suing 3M, and he does not attempt to

14

explain 3M’s relationship to this action. This is presumably because Plaintiff copied
these paragraphs from a different federal complaint in which 3M is a party. See
Verified Complaint ¶ 138, Goecke v. 3M Company, No. 0:22-cv-03087, 2023 WL
3309784 (D. Minn. Apr. 20, 2023), ECF No. 1. As 3M is not a party to this action,
the court will strike paragraphs 62 and 63 from the Complaint. See Fed. R. Civ. P.
12(f) (“The Court [on its own] may strike from a pleading . . . any immaterial,
impertinent, or scandalous matter.”).
The skeletal remains of his ADA claim do not present a proper basis for
relief. Mr. Miller has only alleged a mere conclusory statement that CAMC
regarded unvaccinated individuals as being disabled and “unable to perform the
duties of their employment,” see [ECF No. 1, ¶ 61], and such statement is
insufficient to establish a claim under the ADA. The CMS Mandate was applicable
to every employee. And it is not that CAMC believed him to be unable to perform,
but rather, by refusing to receive the vaccine, he became ineligible for the job. This
distinction is important. To hold otherwise “would require inferring that [CAMC]
regarded all of its [] employees as having a disability” prior to receiving the vaccine,
which is an assumption that other courts have found to be “implausible.” See

Sharikov v. Philips Med. Sys. MR, Inc., No. 122CV00326BKSDJS, 2023 WL
2390360, at *8 (N.D.N.Y. Mar. 7, 2023) (quoting Shklyar v. Carboline Co., 616 F.
Supp. 3d 920 (E.D. Mo. 2022) (finding the inference that all unvaccinated employees
have a disability to be unreasonable), aff'd, No. 22-2618, 2023 WL 1487782 (8th Cir.

15

Feb. 3, 2023), cert. denied, No. 23-145, 2023 WL 6558492 (U.S. Oct. 10, 2023)).
Other courts in this Circuit agree. See, e.g., Jorgenson v. Conduent Transp. Sols.,

Inc., No. CV SAG-22-01648, 2023 WL 1472022, at *4 (D. Md. Feb. 2, 2023) (“Merely
requiring Plaintiff to follow a COVID-19 safety policy applicable to all employees
does not support the inference that [Defendant] classified Plaintiff as disabled
under ADA.”), aff'd, No. 23-1198, 2023 WL 4105705 (4th Cir. June 21, 2023); Speaks

v. Health Sys. Mgmt., Inc., No. 5:22-CV-00077-KDB-DCK, 2022 WL 3448649, at *5
(W.D.N.C. Aug. 17, 2022) (finding that Defendant did not classify Plaintiff as
having an impairment that limited a major life activity because “she was simply
required to become vaccinated under the Company's COVID-19 policy applicable to
all employees which . . . plainly did not impair her ability to work”). I find the
reasoning of these courts to be persuasive. As such, Count II fails to state a claim
upon which relief can be granted and must be dismissed.
D. Disability Discrimination in Violation of the WVHRA
I also find Mr. Miller’s disability discrimination claim to be unsuccessful
under the WVHRA. The WVHRA provisions are almost identical to that of the ADA,
making it unlawful “[f]or an employer to discriminate against an individual . . . if
the individual is able and competent to perform the services required even if such
individual is . . . disabled.” W. Va. Code § 5-11-9(1). To discriminate means “to
exclude from, or fail or refuse to extend to, a person equal opportunities because of .
. . disability.” Id. § 5-11-3(h). The definition of disability in the WVHRA is similar to

16

that under the ADA, and it encompasses any impairment which substantially limits
a major life activity, such as working, or “being regarded as having such
impairment.” Id. § 5-11-3(m).
To establish a prima facie case of employment discrimination under the
WVHRA, an individual must prove that (1) he is a member of a protected class; (2)
the employer made an adverse decision concerning him; and (3) “but for [his]
protected status, the adverse decision would not have been made.” Syl. Pt. 3,

Conaway v. E. Associated Coal Corp., 358 S.E.2d 423 (W. Va. 1986). For this count,
Mr. Miller alleges he is a member of a protected class because CAMC perceived him
to be “necessarily immuno-deficient and thereby unable to safely perform his job
duties in the workplace.” [ECF No. 14, at 9]. Further, Mr. Miller argues that
CAMC’s conclusion that his vaccination status limits him from “all duties and
position[s]” was discriminatory. Id. at 11.
For the same reasons as discussed above, Mr. Miller cannot show that CAMC
regarded him as having a disability. Regarding all unvaccinated individuals as
being disabled is implausible, particularly because CAMC allowed unvaccinated
individuals to remain employed if they qualified for a vaccine exemption consistent
with federal law. As such, this claim must also fail.
E. Violation of W. Va. Code § 16-3-4b
Last, Mr. Miller alleges that CAMC violated of West Virginia Code Section
16-3-4b. Specifically, Mr. Miller argues that he provided two certifications—one

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notarized stating his religious objections and another from his licensed physician—
that explained why he could not receive the COVID-19 vaccine. [ECF No. 1, ¶¶ 91–
92]. Because the hospital failed to grant his exemption requests, Mr. Miller asserts
that CAMC violated state law. Id. ¶ 94.
The Act, which went into effect January 18, 2022, states that “[a] covered
employer . . . shall exempt current or prospective employees from . . . immunization
requirements upon the presentation of one” of two certifications: (1) a certification
signed by a licensed physician or registered nurse stating that the physical
condition of the employee is such that a COVID-19 immunization is contraindicated;
or (2) a notarized certification executed by the employee stating that he has a
sincerely held religious belief that prevents him from taking the COVID-19 vaccine.
W. Va. Code § 16-3-4b(a). If an individual exercises exemption rights under this
statute, the covered employer may not discriminate against or penalize its
employees via practices such as firing. Id. § 16-3-4b(b).
A covered employer includes any business entity engaged in any business
activity within West Virginia, including for-profit or not-for-profit activity, with
employees. Id. § 16-3-4b(c). However, a covered employer “does not include any
Medicare or Medicaid-certified facilities which are subject to enforceable federal
regulations contrary to the requirements of this section.” Id. Any person “harmed by
a violation of [W. Va. Code § 16-3-4b] may seek injunctive relief.” Id. § 16-3-4b(e).

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CAMC argues that this provision in the West Virginia Code is preempted by
the federal CMS mandate. [ECF No. 10, at 19]. It further contends that because
CAMC is a Medicare or Medicaid-certified facility, it is expressly outside the scope
of the Act. Id. at 19–20. Last, CAMC asserts that the state law does not grant a
private cause of action. Taken together, CAMC argues Mr. Miller’s claim is
precluded. Id.
Mr. Miller counters that CAMC can comply with both the CMS mandate and
West Virginia law because both contain exemption requirements that “aim to
achieve the same purpose” of protecting employees with sincere religious beliefs or
medical reasons that preclude them from complying with a vaccine mandate. [ECF
No. 14, at 15]. In other words, Mr. Miller states that both laws “prevent employees
from being held hostage by their employer,” and because there is no clear evidence
of a conflict of laws, CAMC must comply with West Virginia Code § 16-3-4b.
Mr. Miller’s argument is unavailing. Federal preemption is rooted in the
Supremacy Clause of the Constitution, which provides that “[t]his Constitution, and
the Laws of the United States which shall be made in Pursuance thereof ... shall be
the supreme Law of the Land ... any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Preemption may be
express or implied. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 376–77 (2015). Field
preemption exists if Congress intended “‘to foreclose any state regulation in the
area’ irrespective of whether state law is consistent or inconsistent with ‘federal

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standards.’” Id. at 377 (quoting Arizona v. United States, 567 U.S. 387, 401 (2012)).
Conflict preemption, on the other hand, exists where “compliance with both state
and federal law is impossible” or where “the state law ‘stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.’” Id.
(quoting California v. ARC Am. Corp., 490 U.S. 93, 100–01 (1989)).
On November 5, 2021, CMS issued an interim rule requiring certain health
care providers or hospitals to ensure that its employees are vaccinated against
COVID-19. 86 Fed. Reg. 61561, 61616–27. This rule requires those who participate
in Medicare and Medicaid programs to implement the CMS Mandate and provides
that noncompliance may result in civil monetary penalties, termination of
participation in Medicare and Medicaid, or denial of payment for new admissions.

Id. at 61574. The Supreme Court has ruled that CMS can enforce its mandate.
Biden v. Missouri, 595 U.S. 87 (2022).
Mr. Miller concedes that CAMC is subject to the federal rules and
implemented its vaccine policy “in compliance with the federal CMS mandate.”
[ECF No. 1, ¶ 14]. Moreover, the West Virginia legislature recognized that its law is
inconsistent with the federal CMS Mandate and expressly excluded from its law
any Medicare or Medicaid-certified facilities “which are subject to enforceable
federal regulations contrary to the requirements of this section.” W. Va. Code § 163-4b (emphasis added). As such, CAMC is not a “covered employer” under the Act,
and the plain reading of the statute forecloses Mr. Miller’s argument. See id. (“[A]

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covered employer . . . shall exempt current or prospective employees from . . .
immunization requirements . . . .”). Because CAMC is not a covered employer, it is
not subject to the Act’s requirements. As such, Count V must be dismissed.
IV.

Amendment of the Pleadings
In his response, Mr. Miller “respectfully requests leave to amend to correct

any such insufficiencies” should I find any of his claims to be “insufficiently
pleaded.” [ECF No. 14, at 3–4]. This request falls short of the expectation that a
plaintiff file a motion for leave to amend and explain the changes he attempts to
make. Rule 15 allows a party to amend its pleading “once as a matter of course no
later than . . . 21 days after service of a motion under Rule 12(b).” Fed. R. Civ. P.
15(a)(1)(B). If not, “in all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave.” Id. at (a)(2). The Rules
permitted Mr. Miller to amend his complaint as of right after Defendant’s filed the
present Motion to Dismiss but chose not to do so. Instead, Mr. Miller responded to
the motion and, in an ostensible concession that some of his claims may be
insufficient, asked for leave to amend “in the event” that I agree with Defendant’s
position. As such, I need not consider this request.
V.

Conclusion
For the foregoing reasons, Defendant’s motion to Dismiss is GRANTED in

part as to Counts II, IV, and V, and such claims are DISMISSED with prejudice.
Defendant’s Motion, however, is DENIED in part as to Counts I and III, and

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Plaintiff’s religious discrimination claims for failure to accommodate under Title VII
and the WVHRA remain pending. The court DIRECTS the Clerk to send a copy of
this Order to counsel of record and any unrepresented party.
ENTER:

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November 14, 2023