[00:00:01] Speaker 01: Good morning, Your Honors. [00:00:02] Speaker 01: Matthew McReynolds here on behalf of the plaintiff and appellant, Dr. Timothy Buca. [00:00:07] Speaker 01: I'd like to reserve three minutes of my time for rebuttal, if I may. [00:00:11] Speaker 01: Sure. [00:00:12] Speaker 01: We're here this morning because the district court dismissed Dr. Buca's religious accommodation claims without leave to amend. [00:00:21] Speaker 01: It did so on a finding that the WSU had an undue hardship as a matter of law. [00:00:31] Speaker 01: That finding departed from about 45 years of this circuit's precedence and is in conflict with the Supreme Court's decision just last term in Groff v. DeJoy. [00:00:45] Speaker 01: To be sure, [00:00:47] Speaker 01: The complaints that Dr. Buca filed in state court, which were removed to federal court, were imperfect. [00:00:54] Speaker 01: That's how the Supreme Court described the police officer's complaint in Johnson v. City of Shelby when it reversed and remanded, holding that their employment discrimination claims should have been afforded an opportunity to be amended. [00:01:10] Speaker 01: We hope you do the same in this case. [00:01:13] Speaker 00: My understanding is there was an amendment, but it was back in state court under state rules. [00:01:20] Speaker 00: What would be the amendment here for you to go back with a leave to amend? [00:01:25] Speaker 01: Sure, Your Honor. [00:01:26] Speaker 01: A number of things. [00:01:28] Speaker 01: First of all, we would add in several facts that WSU already has in its possession. [00:01:34] Speaker 01: We would add more facts that Dr. Buca included in his request for accommodation and submitted to them, such as the particulars of his faith and how it conflicted with the COVID-19 vaccination, as well as why he believed that he could have been accommodated and what he observed [00:01:54] Speaker 01: with other patient facing professionals being accommodated even at the same hospital as well as throughout the Seattle area. [00:02:05] Speaker 03: Do you have any obligation to plead about the lack of an undue hardship or is that something for your opponent to have to raise affirmatively? [00:02:14] Speaker 01: It's an undue, it's an affirmative offense, your honor. [00:02:17] Speaker 01: So we do believe that it should not have been a basis for dismissal, especially in the first instance. [00:02:26] Speaker 01: And so the district court's finding of futility runs headlong into a number of this court's precedents. [00:02:36] Speaker 01: Beyond what's in our briefing, [00:02:39] Speaker 01: I'd like to draw the court's attention to a case on futility that I think is particularly helpful. [00:02:45] Speaker 01: That was in WSU's briefing and their answering brief. [00:02:48] Speaker 01: And that was the case of United States versus United Healthcare Insurance. [00:02:53] Speaker 01: And what this court did when it took a close look at futility in that case was to say, you know, even under a higher particularity standard, keeping in mind they're [00:03:03] Speaker 01: Essentially, three standards, the possibility standard in state court, the plausibility standard that we now have under Rule 12, and the higher particularity standard under Rule 9 for a few types of cases, not including this one. [00:03:20] Speaker 01: and so what this court did even on the higher particularity standard was to reverse and hold it to be an abuse of discretion for the court to have found futility when on a fourth amended complaint the plaintiff had not been given an opportunity and the court explained why [00:03:39] Speaker 01: why it takes that approach. [00:03:42] Speaker 01: The reason is that it's one thing if a litigant has three bites at an apple and still can't come up with the facts to plead its case. [00:03:55] Speaker 01: I'm sorry, but a second reason why this court has done what it's done is to prevent plaintiffs from coming to court in search of an unknown wrong to utilize expensive discovery mechanisms to find that. [00:04:10] Speaker 01: That's not what we have in this case. [00:04:12] Speaker 01: WSU already has in its possession the essential facts of this case. [00:04:18] Speaker 01: They have Dr. Buca's [00:04:21] Speaker 01: submission of his request. [00:04:24] Speaker 01: We have their response to that request, and that's one of the first things that we would be exchanging as part of the initial disclosures. [00:04:33] Speaker 01: And I think that's why when you take a close look at their answering brief, and I missed this the first few times that I read it, they're not arguing that they don't know the facts of Dr. Buca's beliefs. [00:04:47] Speaker 01: What they're arguing is essentially that he didn't use the magic words that he should have used in his pleading to tell them what they already knew. [00:04:57] Speaker 03: Well, one thing they may argue is that the undue hardship is substantial, even under Groff. [00:05:02] Speaker 03: And the district court had some sort of, even though the district court used the older standard, had some language sort of consistent with that. [00:05:12] Speaker 03: How do you address that? [00:05:13] Speaker 01: Sure, I agree with that Judge Bress. [00:05:16] Speaker 01: Although the court could reverse and remand just based on the fact that the district court utilized the de minimis standard, if you did that, I think we would be right back here and the district court would be very likely to just say same ruling except under the new standard in Grout. [00:05:35] Speaker 01: So I do think it would be prudent for the court to go ahead and go beyond that step of just reversing based on the use of the de minimis standard. [00:05:46] Speaker 01: What then are you asking us to do? [00:05:47] Speaker 01: We're asking you to reverse and remand and to [00:05:53] Speaker 01: allow the case to go forward as undue hardship Title VII cases have done for the last 40 plus years. [00:06:02] Speaker 01: And so if you look back over the court's leading precedents, especially with Title VII religious discrimination cases, [00:06:10] Speaker 01: nearly all of them reach this court after summary judgment or after a jury or bench trial. [00:06:17] Speaker 01: There's only one exception that I found when the court has approved undue hardship as a matter of law in religious discrimination case, and that was in Sutton v. Providence St. [00:06:30] Speaker 01: Joseph, where the court said there was clearly a clash and a conflict between [00:06:36] Speaker 01: what the employee was asking to do, which was not supply social security numbers, and what federal law required of his employer. [00:06:44] Speaker 01: We don't have that here because the mandated issue provided for accommodation. [00:06:50] Speaker 00: What you're suggesting is even if you were given leave to amend and you amended, that the district court would still invoke [00:06:59] Speaker 00: basically the determination on undue hardship. [00:07:04] Speaker 01: Some speculation on my part, Your Honor, but I do believe that would be what would most likely happen. [00:07:10] Speaker 01: Although, if we were able to amend, we would add significantly more facts to what we've pled. [00:07:18] Speaker 03: You want to save the last few minutes for rebuttal? [00:07:20] Speaker 01: I would like to. [00:07:20] Speaker 01: Thank you, Your Honor. [00:07:22] Speaker 01: Thank you. [00:07:31] Speaker 03: Good morning. [00:07:32] Speaker 02: Good morning, Your Honor. [00:07:35] Speaker 02: May it please the court, Zach Bacalus for Appalee Washington State University. [00:07:41] Speaker 02: The district court correctly dismissed Dr. Bucca's complaint for two reasons. [00:07:45] Speaker 02: First, its threadbare allegations do not establish any of the required elements of a prima facie case, which this court in bold and harsh held was required to survive the pleadings under a motion to dismiss. [00:07:58] Speaker 04: Second. [00:07:59] Speaker 04: Courts have been reluctant over the years to inquire into [00:08:03] Speaker 04: the bona fides of expressed religious beliefs. [00:08:07] Speaker 04: What did W. S. U. Need to know to determine the doctor because concerns about the mandatory vaccination policy were in fact legitimate religious concerns. [00:08:21] Speaker 02: Well, despite a long held reluctance to inquire into religious beliefs, there are thousands of these cases being litigated across the country, and many courts are dismissing on the basis that [00:08:31] Speaker 02: Even on the pleadings, plaintiffs do not state a bona fide conflict between their religious beliefs and the vaccination requirement in question. [00:08:39] Speaker 04: So what should he have pled that he didn't? [00:08:42] Speaker 02: He should have pleaded anything about what his beliefs are. [00:08:45] Speaker 04: I mean, unlike many complaints where they at least contain... Cite passages from the King James Version of the Bible or the Koran or what? [00:08:53] Speaker 02: Certainly not, Your Honor. [00:08:55] Speaker 02: This complaint does not contain a single word describing what Dr. Bucca's beliefs are. [00:08:59] Speaker 02: So we can start there. [00:09:00] Speaker 02: He should have said, I believe X. It conflicts with the vaccination requirement because of Y. Even if that's true, why shouldn't he be allowed to amend? [00:09:11] Speaker 02: We didn't ask for dismissal with prejudice on that basis. [00:09:14] Speaker 02: We agree. [00:09:15] Speaker 02: that if that were the only basis for dismissal, giving an opportunity to amend would have been entirely appropriate. [00:09:21] Speaker 02: That's what we asked the district court. [00:09:22] Speaker 00: So you're not opposed to a remand for amendment? [00:09:26] Speaker 02: Not on the prima facie case. [00:09:28] Speaker 02: The undue hardship defense, however, is an absolute bar, and the district court here correctly found that it was obvious on the face of the complaint and judicially noticeable facts. [00:09:38] Speaker 04: This policy has now been rescinded, correct? [00:09:41] Speaker 02: Yes, the proclamation, the vaccination requirement has been rescinded. [00:09:45] Speaker 04: And I believe the Ninth Circuit has upheld cases in which injunctions were sought based upon the fact that the policy's been rescinded. [00:09:55] Speaker 04: What has been the practice, if you know, with respect to reinstatement of employees who refuse the mandatory vaccination requirement? [00:10:06] Speaker 02: At WSU or generally? [00:10:08] Speaker 04: It's your client. [00:10:08] Speaker 02: I'm not aware of any. [00:10:12] Speaker 02: around the state. [00:10:12] Speaker 02: You have seen summary and statements in local jurisdictions. [00:10:16] Speaker 02: The Bacon case involves that to some degree, of course. [00:10:19] Speaker 02: But here, Dr. Buca is seeking damages. [00:10:22] Speaker 02: So there's no question of mootness in this case under Title VII, which entitles prevailing plaintiffs to damages. [00:10:29] Speaker 02: So the critical point here is that [00:10:33] Speaker 02: Graf did articulate a different standard than the prevailing case from Hardison, but it did so in a unique context that's quite different from this case. [00:10:42] Speaker 02: It involved a financial cost to the employer. [00:10:44] Speaker 02: Both Graf and Hardison were sabbatarian cases where the employee [00:10:48] Speaker 02: sought to take his Sabbath off as a workday. [00:10:52] Speaker 02: So the entire question in Groff was how much money is too much money for the post office to have to incur to allow Mr. Groff to have his Sunday's off. [00:11:03] Speaker 02: Here, it's a totally different character of undue hardship. [00:11:06] Speaker 02: The undue hardship is the risk, the increased risk that an unvaccinated primary care physician would spread COVID-19, a deadly virus, to his colleagues and to patients, undermining the fundamental mission of the hospital and the medical system in which he works. [00:11:23] Speaker 04: As we now know that the science has sort of drifted down around vaccines, being vaccinated doesn't mean you can't [00:11:33] Speaker 04: get COVID and that you can't transmit COVID. [00:11:37] Speaker 04: Did this particular policy allow employees like Dr. Buca to get routinely tested as an alternative to vaccination? [00:11:47] Speaker 02: That's not on the record, but my understanding is that for direct patient care facing caregivers know that if they were going to be in a hospital attending to patients, engaging in direct patient care, [00:11:59] Speaker 02: that an accommodation was not possible that would allow them to do that. [00:12:03] Speaker 03: My difficulty with this is that these may be good arguments, but on a motion to dismiss, I have some question as to whether that would be the right way to resolve this without more understanding about this plaintiff, about your client, and about the work environment. [00:12:18] Speaker 02: Understood. [00:12:18] Speaker 02: There are two different questions the court really has to answer in this case with respect to undue hardship. [00:12:24] Speaker 02: The first question is the sort of substantive question, which is, is the risk that an employee, specifically a physician, that the increased risk that he would spread COVID to patients and caregivers, does that constitute an undue hardship under Grof? [00:12:40] Speaker 02: Is it a substantial hardship in the conduct of the employer's business? [00:12:44] Speaker 02: If so, the court has to then answer a second question. [00:12:47] Speaker 02: which is under Bolden Harge, did the complaints allegations and the judicially noticeable facts here establish that obvious bar of undue hardship in this case? [00:12:57] Speaker 02: And we would argue that the answer to both questions is yes. [00:13:01] Speaker 02: Groff clearly holds that impacts on co-workers can be an undue hardship, just as Sotomayor's concurring opinion [00:13:08] Speaker 02: It makes that even more emphatic, joined by Justice Jackson. [00:13:11] Speaker 02: This court and Batia and Balint and many other cases has held that co-worker impacts, not just financial impacts, but co-impacts on their health and safety, even kind of moral impacts. [00:13:24] Speaker 02: The court put it best, I think. [00:13:25] Speaker 00: What's troubling here is in the order the judge says no accommodation was possible. [00:13:33] Speaker 02: In the context of this case, Your Honor. [00:13:34] Speaker 00: Well, I understand that, but it seems to me that [00:13:38] Speaker 00: Although you've appropriately pointed out that Grof came up in a different context, Grof was pretty clear that these are fact-specific inquiries. [00:13:47] Speaker 00: So sort of playing off of Judge Bress' question, why isn't that best decided not on this motion to dismiss? [00:13:56] Speaker 02: Well, what more facts would need to be here? [00:13:59] Speaker 02: For example, Dr. Buca has not said that he would request an accommodation where he could be a telemedicine doctor or something like that, or that he would take a leave of absence. [00:14:09] Speaker 00: We let him amend the complaint and then we all know. [00:14:14] Speaker 02: Council just represented that the accommodation he was seeking was to continue being to be a patient facing accommodations. [00:14:24] Speaker 02: The idea that during the height of the Delta surge, during the COVID pandemic, that an unvaccinated physician would be treating patients directly and possibly spread COVID to them would undermine the basic fundamental tenet of the medical profession, do no harm. [00:14:39] Speaker 02: That's a substantial hardship. [00:14:41] Speaker 02: And Dr. Picard. [00:14:43] Speaker 03: I mean, this is now getting well outside what's in front of us, but hospitals and other places seem to have [00:14:49] Speaker 03: different policies on these things. [00:14:50] Speaker 03: Workplaces have different policies. [00:14:52] Speaker 03: You're asking us to make a judgment, essentially as a matter of law, that any time any doctor wants to work in a hospital and doesn't want to get vaccinated, automatically that person can be terminated. [00:15:01] Speaker 03: I mean, you can make that argument, but all we're looking at is a complaint. [00:15:06] Speaker 02: No, Your Honor, it's unlike what Dr. Buca says and what Amica says here. [00:15:11] Speaker 02: It's not a per se sweeping rule that's going to resolve this case. [00:15:15] Speaker 02: There are five aspects of Dr. Buca's circumstances that make this case unique and distinguish it from other cases even in this circuit. [00:15:23] Speaker 02: So the fact that he's a physician, so no doubt that he's engaging in in-person care, doesn't say otherwise. [00:15:30] Speaker 02: Second, the timing of it. [00:15:31] Speaker 02: And to address Judge Hawkins' point earlier, [00:15:34] Speaker 02: The later science is irrelevant to the question of undue hardship, which must be examined from what the employer knew at the time the accommodation decision was made. [00:15:44] Speaker 02: That's a critical point. [00:15:45] Speaker 02: This was in October of 2021 at the height of the Delta surge. [00:15:50] Speaker 03: How do we know what the employer knew at that time based at the motion to dismiss? [00:15:54] Speaker 02: Based on judicially noticeable facts. [00:15:57] Speaker 02: It's the information that was available to the employer, so you could have a kind of a constructive knowledge standard. [00:16:03] Speaker 04: Did Dr. Buca say, I will accept no accommodation? [00:16:07] Speaker 02: That's not in the record, but he's had an opportunity now for several years of briefing. [00:16:13] Speaker 04: And may have again. [00:16:14] Speaker 02: I'm sorry? [00:16:16] Speaker 04: And may have again. [00:16:17] Speaker 02: But it's incumbent upon him. [00:16:19] Speaker 02: We took the position, look, we can accommodate you in the hospital. [00:16:23] Speaker 02: That's our motion to dismiss. [00:16:24] Speaker 02: If he believed that some other accommodation were possible, telemedicine, for example, he should say that in his response to the motion to dismiss, in a motion for reconsideration, in his opening brief, in his reply brief. [00:16:37] Speaker 02: Today in argument, he's never suggested that that type of accommodation was available. [00:16:41] Speaker 02: So the only question before this court [00:16:43] Speaker 02: is whether in his circumstances, an unvaccinated primary care physician working during the Delta surge in a hospital treating patients, and this is a really important part as well, he never challenged the judicial noticeability of the CDC study that Washington State University cited and that the district court took judicial notice of. [00:17:04] Speaker 02: So, for example, in the McDonald case out of Oregon, very similar facts to this one. [00:17:09] Speaker 02: It's a nurse engaged in indirect patient care instead of a doctor. [00:17:12] Speaker 02: In that case, the plaintiff objected and said, no, I don't think that the CDC study is accurate. [00:17:19] Speaker 02: Judge Emerget said, okay, I guess I can't take judicial notice of that. [00:17:22] Speaker 02: Dr. Buca did not object to the judicial noticeability of the CDC study. [00:17:26] Speaker 02: He said, oh, you can't take judicial notice in a motion to dismiss without converting it to a motion for summary judgment. [00:17:32] Speaker 02: That's just wrong as a matter of law. [00:17:34] Speaker 02: The district court also denied leave to amend [00:17:37] Speaker 02: finding undue delay and prejudice, and that was not an abuse of discretion, particularly where Dr. Buca did not even ask for leave to amend. [00:17:46] Speaker 02: For those reasons, we ask the court to affirm the district court in all respects, including the dismissal with prejudice and denial of leave to amend. [00:17:54] Speaker 03: Thank you, Mr. Picaylus. [00:17:56] Speaker 03: And we'll hear a rebuttal. [00:17:58] Speaker 03: Mr. McReynolds. [00:18:05] Speaker 01: Thank you, Your Honors. [00:18:07] Speaker 01: There's an easy way and a hard way to resolve this. [00:18:11] Speaker 01: What we're asking you to do with reversal would not involve delving into the thorniest issues of the COVID-19 litigation that's now in the pipeline. [00:18:22] Speaker 01: Should you affirm the decision below on any grounds? [00:18:27] Speaker 01: I don't see how [00:18:28] Speaker 01: It can possibly avoid affecting hundreds of other plaintiffs who are currently litigating who have gotten past the motion to dismiss stage because many of the district judges in this circuit have seen essentially what we've seen in these cases. [00:18:46] Speaker 01: They need to be allowed to develop. [00:18:48] Speaker 01: They need to be allowed, at least through discovery, into the summary judgment phase. [00:18:55] Speaker 01: all of those cases are potentially at stake here. [00:18:58] Speaker 01: We think it would be a manifest injustice to Dr. Buca, not to permit him to have leave to amend, but surely all the other litigants with similar cases should have their day in court as well. [00:19:11] Speaker 01: We briefed the judicial notice issue, so I won't belabor that. [00:19:19] Speaker 01: We think that WSU is reading a bit into the decision below, which never actually stated that it was taking judicial notice of anything. [00:19:31] Speaker 01: We've explained from this court's COJA decisions why we think that's particularly problematic. [00:19:39] Speaker 01: And at bottom, we would present that WSU is arguing this as a game of skill or a game of chance where one misstep by a counsel jeopardizes their case. [00:19:55] Speaker 01: The Supreme Court addressed that in [00:19:57] Speaker 01: particularly Johnson v. City of Shelby, and this Court has had its own eloquent responses to that. [00:20:04] Speaker 01: But the Supreme Court has made clear that's not how we handle employment discrimination cases in particular. [00:20:14] Speaker 01: Dr. Buca, on behalf of himself, as well as many other similarly situated litigants across the circuit, respectfully would ask you to reverse and remand. [00:20:26] Speaker 01: Thank you, Your Honors. [00:20:27] Speaker 03: Thank you, Mr. McReynolds, and we thank both counsel for the helpful briefing and arguments. [00:20:32] Speaker 03: This matter is submitted.