[00:00:00] Speaker 03:
You may begin.

[00:00:00] Speaker 01:
Okay, thank you.

[00:00:02] Speaker 01:
May it please the court.

[00:00:03] Speaker 01:
There appears to be no consensus between different circuits about how to determine what religious conflict is and what it takes to show religious conflict in the context of Title VII.

[00:00:15] Speaker 01:
As the Dietweiler Court recently pointed out, as this circuit recently pointed out, the sixth, seventh, and eighth circuits have a much broader interpretation

[00:00:24] Speaker 01:
of religious conflict, and those circuits would certainly reverse the summary judgment in this case.

[00:00:31] Speaker 01:
However, even this circuit appears to treat religious conflict differently in different cases.

[00:00:36] Speaker 01:
For instance, in the ongoing King versus City and County of San Francisco case, this court held at the injunction hearing, relying on the Supreme Court case of Thomas v. Review Board, that a religious belief need not be consistent

[00:00:49] Speaker 01:
or rational to be protected under Title VII, and an assertion of sincere religious belief is generally accepted.

[00:00:58] Speaker 01:
The King panel concluded that the district court erroneously held that the appellants had not asserted their sincere religious belief because they were not sufficiently scientifically accurate and remanded the matter.

[00:01:10] Speaker 01:
In Doe versus San Diego Unified School District, this court said, we may not question the legitimacy of appellants' religious beliefs regarding COVID-19 vaccinations.

[00:01:21] Speaker 00:
So, Council, if you could talk about our recent Detweiler case, that was the case we asked for supplemental briefing on.

[00:01:27] Speaker 00:
I've read your supplemental brief.

[00:01:29] Speaker 00:
I understand you're not a fan of the Detweiler case, understandably.

[00:01:33] Speaker 00:
But as of right now, that is the controlling law of the circuit.

[00:01:38] Speaker 00:
So, how do we

[00:01:40] Speaker 00:
To get where you want to go, how do we get around Detweiler?

[00:01:44] Speaker 00:
Yes, Your Honor.

[00:01:44] Speaker 01:
Absolutely.

[00:01:45] Speaker 01:
So I'm a big fan of Justice Van Dyke's decision.

[00:01:49] Speaker 01:
It's so eloquent.

[00:01:51] Speaker 01:
It points out everything that I would like to say.

[00:01:53] Speaker 00:
I'll make sure he knows.

[00:01:55] Speaker 00:
I'll send him the video of you saying that.

[00:01:57] Speaker 01:
Thank you.

[00:01:57] Speaker 01:
So given that Title VII says, the Congress said all forms of religion are protected.

[00:02:04] Speaker 01:
Given that the Supreme Court said that the courts are not to overanalyze

[00:02:09] Speaker 01:
not to scrutinize, not to dissect which is secular and which is sufficiently religious conflict in this context, given that EEOC said that when the conflict is both religious and secular at the same time, it doesn't lose the protection.

[00:02:27] Speaker 01:
And given that in this case, Miss Ledesma provided a very detailed exemption letter where the very first paragraph, even the last sentence of the first paragraph says, this demand for an exemption is based on my deeply held religious beliefs pursuant to my reliance on teachings in the Holy Bible, siding with a bunch of verses.

[00:02:47] Speaker 01:
The fact that she points out some safety concerns down the road, that creates the exact combination of religious and secular concerns, which EOC and the Supreme Court envisioned when they said, look, if there are safety concerns, scientific concerns, secular concerns, and religious concerns, the religious concerns are still protected because the Congress

[00:03:15] Speaker 01:
the Congress defined the religion so broadly.

[00:03:19] Speaker 01:
Now, this is a summary judgment case.

[00:03:21] Speaker 01:
At the very least, there is a tribal issue of fact here, whether the appellant, Miss Ledesma, sufficiently expressed a religious conflict

[00:03:33] Speaker 00:
But it seems to me, I hate to cut you off, but it seems to me that what you're saying, and I appreciate the argument, is that we got it wrong in Detweiler.

[00:03:42] Speaker 00:
That's what I'm hearing.

[00:03:42] Speaker 00:
And fair enough.

[00:03:44] Speaker 00:
And they filed a petition for rehearing in that case, and maybe this court will take it up.

[00:03:48] Speaker 00:
I don't know.

[00:03:49] Speaker 00:
But right now, Detweiler is the controlling law.

[00:03:52] Speaker 00:
So why is it that if Detweiler is the word we've got to follow,

[00:03:58] Speaker 00:
I'm still not hearing why this case is different than Detweiler.

[00:04:03] Speaker 00:
How do we get around that case?

[00:04:05] Speaker 01:
Your Honor, there are similarities between requests for exemptions.

[00:04:08] Speaker 01:
They both list some religious objections to the vaccine and also some secular objections.

[00:04:17] Speaker 01:
The appellant believes that her request for religious exemption is arguably more detailed.

[00:04:23] Speaker 01:
Two or three verses of Bible are cited

[00:04:27] Speaker 01:
and immediately connected to her explanation, which is more than any layperson could ever be expected to explain.

[00:04:36] Speaker 03:
Excuse me.

[00:04:37] Speaker 03:
It seems like one distinction is that Weiler was at the motion to dismiss stage.

[00:04:42] Speaker 03:
And I think you know this is at the motion for summary judgment stage.

[00:04:46] Speaker 03:
So should we expect more in terms of response

[00:04:57] Speaker 03:
At this point, as to the justification for the religious exemption from the plaintiff, then what was presented at the motion to dismiss stage?

[00:05:12] Speaker 01:
No, Your Honor, given that the burden that all reasonable inferences should be in favor of the non-moving party at the summary judgment, and given that plaintiff provided some, more than some evidence of

[00:05:27] Speaker 03:
Her religious object was it was it the same as what she provided at the motion for to dismiss stage I I I know what this this this case did survive the motion to dismiss stage Correct, correct.

[00:05:39] Speaker 03:
I guess nobody moved to dismiss.

[00:05:42] Speaker 03:
Is that right?

[00:05:43] Speaker 03:
I'm sorry in this case.

[00:05:44] Speaker 03:
No one moved to dismiss Correct.

[00:05:46] Speaker 03:
I'm sorry Yes, in this case no one moved to dismiss at the at the

[00:05:55] Speaker 03:
at the early stage.

[00:05:56] Speaker 03:
Is that correct?

[00:05:56] Speaker 01:
Correct.

[00:05:56] Speaker 01:
There was a dismissal of one duplicate claim, but generally there was no full motion to dismiss.

[00:06:03] Speaker 03:
And the development of the record

[00:06:07] Speaker 03:
does not seem that significant.

[00:06:09] Speaker 03:
Given the opportunity to explain more, it doesn't seem like there was more.

[00:06:13] Speaker 03:
You're saying just whatever you provide at the motion to dismiss stage will likely sustain you all the way through the motion summary judgment, no need to have discovery in these kind of cases?

[00:06:23] Speaker 03:
I'm trying to understand.

[00:06:25] Speaker 03:
And some of it is just the posture of this case compared to Detweiler.

[00:06:29] Speaker 01:
Yes.

[00:06:29] Speaker 01:
Your Honor, plaintiff provided her initial request for exemption, then her letter.

[00:06:34] Speaker 01:
There were deposition taken where

[00:06:36] Speaker 01:
the employer said that we accepted your religious beliefs as sincere.

[00:06:41] Speaker 01:
There was never a question of why she was terminated.

[00:06:44] Speaker 01:
There was never a question about the sincerity of her beliefs or a question of conflict.

[00:06:51] Speaker 03:
But it seemed in Detweiler and here that it could be

[00:07:00] Speaker 03:
argued that it was more secular and not sufficiently based on her religious convictions.

[00:07:08] Speaker 01:
Well, I would submit to the court that this is way more religious.

[00:07:11] Speaker 01:
The request for exemption here, which is one of the exhibits to the appeal, is much more detailed.

[00:07:17] Speaker 01:
We have at least four or five paragraphs immediately connecting Bible verses to the

[00:07:23] Speaker 02:
to the plaintiff to the appellant's religious convictions.

[00:07:40] Speaker 02:
works as a gene therapy by manipulating genetic operations, the COVID-19 shots alter what God made, literally assuming the position of God, which I believe to be a sinful practice under these circumstances.

[00:07:51] Speaker 02:
That's very specific religious belief that's tied to the COVID vaccine, correct?

[00:07:57] Speaker 02:
And isn't that different than in Detweiler?

[00:08:00] Speaker 01:
Yes, it's much more specific.

[00:08:02] Speaker 01:
It's much more elaborate.

[00:08:03] Speaker 01:
It's more elaborate than the Congress or US Supreme Court would ever expect.

[00:08:07] Speaker 01:
And it's much more elaborate than the plaintiffs in Keene.

[00:08:11] Speaker 01:
In Keene, we're saying.

[00:08:12] Speaker 01:
And even that case was reversed.

[00:08:14] Speaker 01:
And there, the injunction was awarded.

[00:08:15] Speaker 02:
I was on Keene.

[00:08:16] Speaker 02:
I know that.

[00:08:16] Speaker 01:
Right.

[00:08:17] Speaker 01:
That's why I'm mentioning it.

[00:08:18] Speaker 01:
I know.

[00:08:18] Speaker 01:
Right.

[00:08:18] Speaker 01:
So if that case in this very courtroom was ruled on favorably, surely this case, surely this case should be ruled favorably.

[00:08:29] Speaker 01:
Ms.

[00:08:29] Speaker 01:
Ledesma did way more than any layperson could possibly be expected to overcome summary judgment and create a tribal issue of fact.

[00:08:42] Speaker 03:
Did you want to reserve the balance of your time?

[00:08:45] Speaker 03:
Yes.

[00:08:46] Speaker 01:
Thank you.

[00:09:00] Speaker 04:
May it please the court, Dawn Soloway of Seyfrath Shaw for the appellee Optum Inc.

[00:09:05] Speaker 04:
Your honors, Optum asked that this court affirm the district court's grant of summary judgment for Optum for four different reasons.

[00:09:14] Speaker 04:
First, as the district court held and as we've been discussing this morning, the plaintiff failed to establish a religious belief as a matter of law.

[00:09:23] Speaker 04:
Alternatively, the plaintiff is not able to establish a prima facie case because she can't show a conflict with vaccination as a matter of law or that she informed Optum of her actual views as to any sincere religious conflict.

[00:09:37] Speaker 04:
And even if she could establish a prima facie case, Optum has demonstrated an undue hardship as a matter of law.

[00:09:43] Speaker 02:
Okay, so counsel, would you agree that the statement COVID shots alter what God made, literally assuming the position of God, which I believe to be a sinful practice under these circumstances, is a religious belief?

[00:09:55] Speaker 04:
Not in the context of this record, Your Honor.

[00:10:00] Speaker 02:
Well, first, just answer that question, yes?

[00:10:03] Speaker 04:
The answer is no, not in the context of this record.

[00:10:05] Speaker 04:
And I say that because here we have the submission that she gave to the company,

[00:10:11] Speaker 04:
She admitted that that was an internet form and that she just took it off the internet because... She admitted that she agreed with it, correct?

[00:10:21] Speaker 04:
Well, Your Honor, I think what she said under oath was that it was due the next day, so it just went online, looked for something.

[00:10:28] Speaker 04:
I didn't think much of it.

[00:10:30] Speaker 04:
I just thought, well, they need to have some documentation.

[00:10:32] Speaker 04:
And she admitted that she didn't write a single word.

[00:10:34] Speaker 02:
And then she took out the parts that she disagreed with and submitted the things that she agreed with.

[00:10:39] Speaker 02:
So why can't we take this as her statement of religious belief?

[00:10:43] Speaker 04:
Because, Your Honor, she was also deposed.

[00:10:45] Speaker 04:
And here's where it's important that this is a summary judgment case.

[00:10:48] Speaker 04:
So we have the benefit of a full record.

[00:10:50] Speaker 04:
And we have not only her admissions that this was just an internet form that she didn't write herself, but she was asked open-ended questions.

[00:10:57] Speaker 02:
Is there a requirement that she write it herself?

[00:10:59] Speaker 04:
Well, Your Honor, I think it's important to take into account the full context.

[00:11:03] Speaker 04:
And she was asked an open-ended question under oath.

[00:11:06] Speaker 02:
She didn't disavow it, correct?

[00:11:08] Speaker 04:
Well, I think she indicated.

[00:11:10] Speaker 02:
She said she agreed with it.

[00:11:11] Speaker 04:
Your honor, I believe that we have to look at the full context of the record.

[00:11:14] Speaker 02:
Yes.

[00:11:15] Speaker 02:
And she said she agreed with it.

[00:11:16] Speaker 04:
And what she said is that she just took it off the internet to sort of check the box for documentation without thinking a lot about it.

[00:11:22] Speaker 04:
But I think most importantly, she was asked under oath in a very open-ended question, what is your objection to COVID vaccination?

[00:11:29] Speaker 04:
Yeah.

[00:11:30] Speaker 04:
And there she gave a detailed question, answer under oath.

[00:11:34] Speaker 04:
She said that her body was a temple.

[00:11:35] Speaker 02:
So your position is we can't consider anything that was submitted to Optum.

[00:11:39] Speaker 04:
Well, I think, Your Honor, it's important that she admitted that, under oath, that her real objection... No, I'm just asking you, can we not consider anything that was submitted to opsum?

[00:11:47] Speaker 04:
I think we should consider the full context.

[00:11:49] Speaker 02:
Okay.

[00:11:49] Speaker 02:
And so, and one of the statements is this very specific religious statement, correct?

[00:11:54] Speaker 04:
No, I don't believe so, Your Honor.

[00:11:55] Speaker 04:
So, I think, first, I think we have to look at what... Okay, let me parse it.

[00:11:59] Speaker 02:
What's the problem with it?

[00:12:01] Speaker 02:
Is it not specific?

[00:12:03] Speaker 04:
I don't think that's the issue, Your Honor.

[00:12:05] Speaker 02:
Okay, so it is... Okay, then is it not religious?

[00:12:07] Speaker 04:
It is not religious as a matter of law.

[00:12:09] Speaker 02:
So the statement that COVID-19 alters what God made is not a religious statement.

[00:12:16] Speaker 04:
Well, I think, Your Honor, again, I think we have to look at the whole record.

[00:12:19] Speaker 02:
No, just as an isolated statement, is that religious or not?

[00:12:24] Speaker 04:
I don't think you can take one piece of an internet forum and look at that in a vacuum.

[00:12:30] Speaker 04:
I think you have to look at the full context.

[00:12:31] Speaker 03:
And when you say the full context, I am interested in what you'd like to highlight.

[00:12:35] Speaker 03:
I want to know what you're highlighting in her deposition that you think counters

[00:12:40] Speaker 03:
what my colleague here is focusing on in terms of the religious statement, whether it's an internet record, but it's one that she apparently adopted and submitted.

[00:12:51] Speaker 03:
So can you point to me what your best argument is as to why what she said

[00:12:58] Speaker 03:
would somehow neutralize or not give effect to the religious references?

[00:13:02] Speaker 04:
Yes, Your Honor.

[00:13:03] Speaker 04:
So she was asked an open-ended question at deposition.

[00:13:05] Speaker 04:
What is your objection to the COVID vaccine?

[00:13:07] Speaker 04:
And she said that she believes her body is a temple, so just like Detweiler.

[00:13:12] Speaker 04:
And she said that she comes from a Mexican tradition of holistic treatments and believes in homeopathy.

[00:13:18] Speaker 04:
And she said, quote, you try to lessen the harm that you do with anything, unquote.

[00:13:23] Speaker 04:
Quote, you have autonomy over your body, and you are to decide what's good for you and what's not good for you, unquote.

[00:13:29] Speaker 04:
She also then admitted that she didn't actually know either way whether the vaccine would cause harm.

[00:13:35] Speaker 04:
So that was her admission under oath as to her actual objection to the vaccine.

[00:13:40] Speaker 04:
And I think if we look at, as Your Honors were

[00:13:43] Speaker 04:
discussing the controlling law in the circuit is the Detweiler case, and this case is extremely similar to that case.

[00:13:50] Speaker 02:
Only if you ignore the letter she submitted to Optum, correct?

[00:13:53] Speaker 04:
No, Your Honor, I don't believe so, respectfully.

[00:13:55] Speaker 04:
I believe that you have to look at the full context.

[00:13:58] Speaker 04:
Again, she was asked an open-ended question.

[00:14:01] Speaker 04:
She could have said anything.

[00:14:02] Speaker 04:
She could have said the quote that you're pointing to.

[00:14:03] Speaker 02:
But she didn't disavow it, so did she have to recite the letter again in order at deposition, in order to get it in the record?

[00:14:10] Speaker 04:
No, Your Honor, but I think when she was asked an open-ended question, she could have referred back to pieces of the letter.

[00:14:16] Speaker 04:
Instead, she repeatedly said, I didn't think that much about it.

[00:14:19] Speaker 02:
She did try to refer it to the letter, and someone stopped her from doing that.

[00:14:22] Speaker 02:
Instead, she repeatedly said what?

[00:14:23] Speaker 04:
She repeatedly said that I didn't think that much about the forum, the Internet forum.

[00:14:28] Speaker 04:
I just, I needed something, it was due the next day, repeatedly used- She's that?

[00:14:32] Speaker 03:
Do you have the ER site for that?

[00:14:34] Speaker 04:
Yes.

[00:14:35] Speaker 04:
It's in multiple places, including ER 164 to 165.

[00:14:40] Speaker 04:
And I think what the Detweiler Court focused on is that the plaintiff has to show a sufficient nexus between religion and a specific belief that's in conflict with the requirement.

[00:14:49] Speaker 04:
and that just invoking broad religious tenets can't convert secular preferences into religious convictions.

[00:14:55] Speaker 03:
So I'm curious here, because this does set up sort of similar facts, but at different stages.

[00:15:05] Speaker 03:
You know, debt-liner was at the motion to dismiss.

[00:15:07] Speaker 03:
This is a summer judgment.

[00:15:09] Speaker 03:
So try to ask you the same question I asked your friend across the aisle here.

[00:15:15] Speaker 03:
Does that matter?

[00:15:17] Speaker 03:
Do we expect more of an explanation, you know, or if there's some question of what was filed at the beginning to bear out a motion for summary judgment or, and I think this may be a question related to my colleague here, or can we combine?

[00:15:35] Speaker 03:
And if we combine, is that not enough?

[00:15:38] Speaker 04:
Well, I think, Your Honor, we have here the benefit of a full record, right?

[00:15:43] Speaker 04:
So the Detweiler court dismissed the, just on the basis of the complaint.

[00:15:49] Speaker 04:
Here we have the benefit of a full record, including her sworn deposition admissions.

[00:15:53] Speaker 04:
And I think whether you look at the internet forum or her sworn admissions in either, you have a very similar sort of syllogism as you had in the Detweiler case.

[00:16:02] Speaker 04:
So in Detweiler,

[00:16:03] Speaker 04:
the court looked at, sort of said, even if you agree that body as a temple is a religious belief, even if you agree that it's a religious belief that

[00:16:11] Speaker 04:
it's important to not put harmful things into your body, that the core in Detweiler was the idea that the plaintiff believed that the nasal swabs were a carcinogen.

[00:16:22] Speaker 04:
And here, very similarly, you have a plaintiff who's saying in her deposition, my body is a temple.

[00:16:28] Speaker 04:
She said that she believes in self autonomy, that she doesn't want to put harmful substances into her body.

[00:16:34] Speaker 04:
But the core, as the district court held,

[00:16:37] Speaker 04:
is the idea that the vaccine may do more harm than good.

[00:16:41] Speaker 04:
And if you look at the internet forum or her sworn admissions, she repeatedly refers to secular concerns about the vaccine.

[00:16:48] Speaker 02:
So in the internet forum- Can I ask though, if she mentioned at the deposition the concern about gene manipulation and that alters what God had made, then would you admit that this takes us out of Detweiler?

[00:17:00] Speaker 04:
I think you have to look at the context of the whole record.

[00:17:03] Speaker 02:
I'm just asking hypothetical.

[00:17:04] Speaker 04:
Right, I think it's hard to, you know, to peg it to any one sentence.

[00:17:09] Speaker 04:
I think you need to look at the full context.

[00:17:10] Speaker 02:
But you would agree that's different than Detweiler, right?

[00:17:14] Speaker 04:
I'm sorry, what?

[00:17:15] Speaker 02:
If she said, if she, the reference to gene manipulation and how that alters what God has made, that takes us, that's very different than Detweiler.

[00:17:24] Speaker 04:
I mean, I think the point of Detweiler is that the core conflict that she identifies is the idea that the nasal swabs are carcinogens.

[00:17:32] Speaker 02:
So this is different then, right?

[00:17:33] Speaker 02:
Because here we're talking about gene manipulation, which alters what God has done.

[00:17:38] Speaker 04:
No, Your Honor, I think here the core belief is that the idea that the vaccine does more harm than good.

[00:17:43] Speaker 04:
If you look at the internet form,

[00:17:44] Speaker 04:
She says not only that she believes that shots work as gene therapy, right, which is a secular statement, but also that vaccines are potentially harmful, that they contain carcinogens, neurotoxins, animal viruses, animal blood, allergens.

[00:17:58] Speaker 02:
And it alters what God has made, right?

[00:17:59] Speaker 04:
And heavy metals.

[00:18:00] Speaker 04:
So I agree that there is, those words appear in the internet form.

[00:18:05] Speaker 02:
Didn't you agree that she said she agreed with everything on the internet form, right?

[00:18:09] Speaker 04:
I believe what she said is that she looked through it.

[00:18:13] Speaker 04:
She didn't think much of it.

[00:18:14] Speaker 04:
She said that five or six times at her deposition.

[00:18:16] Speaker 02:
I agree with what it says here.

[00:18:18] Speaker 02:
So I said, so I'll send it, right?

[00:18:20] Speaker 04:
And she said that she took out things that she actively disagreed with.

[00:18:24] Speaker 02:
So that seems like a pretty thoughtful, deliberative process of what she submitted to Optum.

[00:18:31] Speaker 04:
Well, not according to her own admissions, Your Honor.

[00:18:33] Speaker 04:
She said she didn't think much of it.

[00:18:34] Speaker 04:
So, I mean, that's her own words.

[00:18:35] Speaker 02:
But she took out things that she disagreed with, submitted what she agreed with.

[00:18:38] Speaker 02:
That's pretty thoughtful.

[00:18:40] Speaker 04:
She did say that she had taken out things that she disagreed with.

[00:18:43] Speaker 03:
I think it's also important to... She testified in her deposition.

[00:18:48] Speaker 03:
I think you referenced that she did not write her exemption, but rather sourced it from a website.

[00:18:55] Speaker 03:
Is that right?

[00:18:56] Speaker 03:
And so I guess does the fact that she altered it later, and this is what you've been, I think, discussing here, have any bearing on our analysis to her religious belief?

[00:19:09] Speaker 03:
To what extent would that reflect her thoughtfulness about it?

[00:19:15] Speaker 04:
Well, your honor, she had an open ended question in front of her.

[00:19:18] Speaker 04:
What is your objection to the vaccine and what she told us is, you know, under oath and at length is that it came from her Mexican tradition of holistic treatments and homeopathy.

[00:19:30] Speaker 04:
and the idea of not doing your body more harm than good.

[00:19:33] Speaker 04:
And she also said, I decide alone, which amounts to an impermissible blanket privilege.

[00:19:38] Speaker 04:
And the court addressed that at length in Detweiler, all the reasons why we can't have a system where you can just have a blanket privilege where you just choose what you'd like to do and what you would not like to do, that that's not a religious belief as a matter of law.

[00:19:51] Speaker 03:
So I think we're trying, I'm trying to figure out, you know, what are we focused on in determining the sincerity of her religious beliefs?

[00:20:01] Speaker 03:
Because that's the nexus that we need.

[00:20:03] Speaker 03:
Is that correct?

[00:20:04] Speaker 04:
It's a three-part test, Your Honor, for the prima facie case, a sincere religious conflict.

[00:20:09] Speaker 04:
Our position is that she has not established a religious conflict as a matter of law or a conflict at all, because of course she admitted under oath that she didn't even know if the vaccine caused harm.

[00:20:17] Speaker 03:
The other question, before your time goes, well it's already gone, but I want to ask you about the question of undue burden.

[00:20:28] Speaker 03:
If we reach that question here, there was some really kind of ambiguous reference in the record here, but what is your counter argument to Ms.

[00:20:39] Speaker 03:
Ledesma's assertion that she could have worked remotely?

[00:20:43] Speaker 04:
Um, well, your honor, again, we would look at her own sworn testimony where she admitted that she was a production pharmacist.

[00:20:51] Speaker 04:
So she was the one who was physically taking the materials and producing the packets that would go to these vulnerable patients.

[00:20:57] Speaker 04:
Um, and she admitted under oath.

[00:20:59] Speaker 04:
that she did that in person.

[00:21:01] Speaker 03:
And so I think that really... I think what she... Maybe I'm wrong, but there was a reference that she knew others were working remotely.

[00:21:10] Speaker 04:
So, Your Honor, there were other pharmacists who had more of a clinical role where their job could be performed remotely, but she admitted, and it's undisputed in the record, that she needed to be in person.

[00:21:20] Speaker 04:
And in fact, what she said is that she was asking to be allowed to work unvaccinated in person.

[00:21:28] Speaker 04:
So if you look at ER 184, that's where the company indicated to her that in her role as pharmacist, it was not possible for you to never go in.

[00:21:39] Speaker 04:
You needed to have a physical presence.

[00:21:41] Speaker 04:
And she admitted in response at ER 183 that she admitted that she wanted to work in person unvaccinated.

[00:21:47] Speaker 03:
Thank you very much.

[00:21:48] Speaker 04:
Thank you, Your Honor.

[00:21:48] Speaker 04:
We'll rest on our briefs.

[00:21:57] Speaker 01:
Thank you, your honor.

[00:21:58] Speaker 01:
So to answer your question, this court absolutely should look at the request for exemption.

[00:22:04] Speaker 01:
It's part of the record.

[00:22:05] Speaker 01:
It's admissible, relevant evidence.

[00:22:08] Speaker 01:
It's most immediate to the events that led to this case.

[00:22:12] Speaker 01:
So deposition, yes.

[00:22:15] Speaker 01:
Request for exemption, absolutely yes.

[00:22:18] Speaker 01:
And as the court pointed out, it's much more detailed and it's substantially different

[00:22:22] Speaker 01:
from the Dietweiler case.

[00:22:23] Speaker 01:
So what if she used the form?

[00:22:25] Speaker 01:
We all use forms every day.

[00:22:26] Speaker 01:
Where does it say in the law you have to come up from scratch with some theological essay about how to request an exemption?

[00:22:33] Speaker 01:
There is no such requirement.

[00:22:35] Speaker 01:
We all, including lawyers, use forms all the time.

[00:22:40] Speaker 01:
The burden to establish religion is quote unquote minimal.

[00:22:43] Speaker 01:
The Supreme Court said it for decades now.

[00:22:47] Speaker 01:
And sincerity is usually not a question.

[00:22:49] Speaker 01:
The record here is not developed enough to challenge the sincerity or the religiousness of the appellant.

[00:22:55] Speaker 01:
Even the district court said that I don't want to talk about undue hardship here.

[00:22:59] Speaker 01:
There is definitely not enough record developed here to even get to the question of undue hardship, let alone rule on summary judgment that there is no tribal issue or fact of undue hardship.

[00:23:14] Speaker 01:
Lastly, Your Honors,

[00:23:18] Speaker 01:
The employer's trying to play gotcha.

[00:23:19] Speaker 01:
We ask you one open-ended question.

[00:23:21] Speaker 01:
You didn't spit out, you didn't vomit out every single thing, every single reason you objected to the vaccination.

[00:23:30] Speaker 01:
That's not the same as getting plaintiff to admit that religion had nothing to do or had little to do with her exemption request.

[00:23:39] Speaker 01:
That's simply playing gotcha, and that's not a reason to grant summary judgment in this case.

[00:23:44] Speaker 01:
Thank you.

[00:23:45] Speaker 03:
Thank you very much.

[00:23:50] Speaker 03:
I just want to thank you for your argument presentation and Ms.

[00:23:57] Speaker 03:
Holloway, I appreciate your arguments presented today.

[00:24:00] Speaker 03:
The case of Marie Ledesma versus Optum Services Inc.

[00:24:05] Speaker 03:
is submitted.