[00:00:01] Speaker 04:
Good morning.

[00:00:01] Speaker 02:
Good morning, Your Honor. May it please the court, I'm George Arendt, along with Co-Counsel Garth Dana. We represent appellant Paul Ahman. I'd like to reserve three minutes of my time for rebuttal, if I may.

[00:00:14] Speaker 02:
We're here to ask the court to reverse summary judgment dismissing Mr. Ahman's complaint and remand this case for, at a minimum, for trial. I think you can rule summary judgment in our favor on some of the issues that are present here, but at a minimum...

[00:00:28] Speaker 02:
trial. We're here because the district court... May I interrupt you, Mr. Arendt?

[00:00:34] Speaker 01:
Are you appealing the denial of your motion for summary judgment?

[00:00:39] Speaker 02:
We did not... Well, yes, we said, we noted in the de novo review of summary judgment, this court certainly has discretion to enter summary judgment in our favor.

[00:00:49] Speaker 01:
Do you want to address that at all? Pardon? Do you want to address your appeal from the denial of your motion for summary judgment at all?

[00:00:57] Speaker 02:
I think it is part of the same. I don't want to address it separately from the... Okay, fine, got you.

[00:01:02] Speaker 01:
I don't want to take your time up.

[00:01:03] Speaker 02:
Thank you, Your Honor, and thanks for the question. We're here because the district court ruled that Mr. Amin, in the district court's rule, did not provide adequate notice of exactly how his religious beliefs conflicted with the state of Washington's vaccine mandate. And so what you're called upon here to decide today is what kind of notice is required? What level of detail? One suspects from the defense side that an infinite regression of detail is necessary, but under this court's existing precedent, I don't think we have to go that far.

[00:01:38] Speaker 01:
Is it a question of fact or a question of law?

[00:01:41] Speaker 02:
I think it's a question of, I think you could rule in our favor as a question of law on this case, but as an alternative, you could find a question of fact.

[00:01:53] Speaker 00:
It boils down to he chucks the box, he has a religious exemption. They then ask for further explanation, which in the first form says you could do that. So my question to you is, is it your position that just by filling out the request for religious exemption that he has satisfied his obligation?

[00:02:18] Speaker 02:
So the Heller case, this court's decision in Heller says that the employer needs to be informed of the existence of the conflict between religious beliefs and an employer's work requirement.

[00:02:33] Speaker 02:
That could entail and the employer is entitled to inquire whether the religious beliefs are sincere to make sure that it's not just a subterfuge for getting out of a work requirement on non-religious beliefs.

[00:02:48] Speaker 00:
Let me just be upfront about what my concern is, is that there is no link to religious beliefs here.

[00:02:55] Speaker 00:
I mean, you could say, well, it's evil, but that's not necessarily a religious belief. It's moral. It's financial. But what religious belief, and I think... even just a hint of religious belief might get him across the wire. But what is it that, in your view, gives the employer notice of a religious belief?

[00:03:19] Speaker 02:
So Mr. Rahman said four things. He says that it's tied to abortion, that abortion isn't just a philosophical... Where does he say that? He says that in ER 112 and 113. He says that he won't take the existing COVID vaccine because it employs the products of abortion in its development. I'm paraphrasing there. And then he says he would take the Novavax vaccine when it became available because it did not utilize the products of abortion.

[00:03:50] Speaker 04:
So he doesn't say the word abortion, but your point is he means that.

[00:03:55] Speaker 04:
Yes.

[00:03:56] Speaker 00:
And that's my point. You're reading in all of that. I'm looking at what he told the employer, which is.

[00:04:05] Speaker 00:
his reasons being basically he doesn't want to have the blood of baby on his hands.

[00:04:14] Speaker 00:
He doesn't want the use of baby parts.

[00:04:18] Speaker 00:
And he doesn't want to put a monetary value on babies. So that's what he actually says, right?

[00:04:26] Speaker 02:
Yeah. So I think if we put blinders on, we say the blood of any baby on my hands is something other than abortion and utilizing the products of abortion, the development of this vaccine in this case. And then he says it's evil, it's selfish, and it devalues human life. Those are not... You could say in an isolated context, if you take those words completely divorced from their context, where he first checks the box, I can't take this vaccine because of religious beliefs.

[00:04:57] Speaker 02:
And then they say...

[00:04:59] Speaker 02:
Explain how the vaccine conflicts with your asserted strongly held beliefs. I will not have the blood of babies on my hands. It's evil. It's selfish. And it devalues human life. And I will take a vaccine that doesn't, if we go on to ER.

[00:05:13] Speaker 00:
Right. He says he would take a different kind of vaccine.

[00:05:18] Speaker 02:
Yeah. He calls it a clean vaccine. Again, doesn't use the word abortion. But I don't think we can we can say look at these words in isolation from their context in the context of this controversy that exists and existed regarding the moral and religious objections to the covid vaccine. I don't think that this especially. OK, so let's say we're not going to decide this is a matter of love. We decided as a question of fact, all reasonable inferences in favor of Mr. Amin say yes.

[00:05:51] Speaker 02:
This is a religious reason. He is notifying the Department of Transportation that there is a conflict. They know of the existence of the conflict, and I don't think you can read those words in isolation to say, well, it could be just a completely wholly secular conflict based on some non-religious moral principles.

[00:06:12] Speaker 04:
Nothing akin to what you had in Detweiler, which involved a different element of the... Can I ask here, they went back to him after they got this and said, I'm paraphrasing, but can you provide some more information, which he then didn't do. So what's your response to that aspect of the record?

[00:06:29] Speaker 02:
Yeah, they didn't ask him for more information about his religious beliefs. They asked him, and so there's a couple record citations. The opportunity to respond is on ER 87. Let us know. It's pretty definitive. Let us know if you're going to comply with the vaccine mandate. So you have an opportunity to respond in writing that includes advising us that you are going to validate your vaccine before October 4th, 2021. And so if you look at ER 87 and the other notices, ER 83, ER 86, even ER 90.

[00:07:11] Speaker 02:
He's presented with a take it or leave it option. And I see I'm into my rebuttal time, but I also want to keep going.

[00:07:19] Speaker 04:
Yeah. Pardon? Go ahead and keep going.

[00:07:21] Speaker 02:
He talks to his superintendent, Fight Cow, who says, if you don't get the vaccine, you are going to be fired. And that's part of the context here, too. When you look at his deposition testimony, this is it's I don't have the ER site handy, but I know the supplemental ER site, I believe, is 217 through 219. Mr. Ahman.

[00:07:43] Speaker 02:
says, I don't know what more I was supposed to tell them. I did the best I could to tell them of why I had a religious objection. After telling them I had a religious objection, and I realized that we don't want every employee to be a law unto themselves.

[00:07:59] Speaker 02:
But in the context here, a religious objection, I mean, explaining it in religious terms, which in the context can only be, certainly in the light most favorable, has to be understood in religious terms. This is not...

[00:08:13] Speaker 02:
A subterfuge, especially where the Department of Transportation admits no question about his credibility, no question about the sincerity of his religious beliefs.

[00:08:24] Speaker 01:
They did question it, but the judge found in his favor that they didn't provide any evidence of insincerity.

[00:08:31] Speaker 02:
The lawyers questioned it. Ms. Amy Furmo, the assistant director of HR for the Department of Transportation, said, I have no questions about the credibility or the sincerity. And his supervisors, Steinmetz and Superintendent Feitkow, both said, we know you're sincere about this. And so there was no question on the factual record as distinguished from the argument about the sincerity of his belief.

[00:08:55] Speaker 00:
There's no question about the sincerity. I think what you would say is, well, the judge, or now us, have to somehow impute that to be a religious belief as a matter of law? Or you alternatively say, no, it's a question of fact, let's have a trial? I'm a little confused by which position you're taking.

[00:09:14] Speaker 02:
So, if I'm honest with you, if you look at this record, I don't think there's any way you can conclude that this is a non-religious request for accommodation. However... As a backup, you may disagree with me, and I think you could conclude, and we would certainly welcome, as opposed to dismissal, a ruling that it's a question of fact and we'll present this to a jury any day.

[00:09:35] Speaker 04:
Appreciate that. Thank you. We'll put two minutes up on the clock when you come back.

[00:09:39] Speaker 02:
Thank you, Your Honor.

[00:09:40] Speaker 04:
Thank you.

[00:09:53] Speaker 03:
Good morning, Your Honors, and may it please the Court, Kai Smith, on behalf of APLE, Washington State Department of Transportation. Title VII requires an employee requesting a religious accommodation to provide enough information for the employer to understand that the belief is religious in nature. Amin did not do that here. He identified no belief underlying his objection, not even a hint, as Judge McEwen noted in her question.

[00:10:19] Speaker 01:
You say there's no hint.

[00:10:22] Speaker 01:
Let me suggest to you Baby parts in a vaccine, does that not hint to you that they were procured from aborted fetuses?

[00:10:35] Speaker 03:
It does not, Your Honor.

[00:10:37] Speaker 01:
Where else could they be procured?

[00:10:43] Speaker 03:
Well, I guess the question seems to be getting at whether abortion is inherently a religious objection, and the answer is no.

[00:10:49] Speaker 01:
Your answer is you can't object to abortion on a religious basis?

[00:10:56] Speaker 03:
You can object to abortion on a religious basis, yes.

[00:10:58] Speaker 01:
And he said that he didn't want to be part of evil, right?

[00:11:03] Speaker 03:
That's correct.

[00:11:04] Speaker 01:
Do you know what the last phrase of the Lord's Prayer is?

[00:11:08] Speaker 03:
I do not.

[00:11:10] Speaker 01:
And deliver us not into evil.

[00:11:14] Speaker 01:
That is part of our Father.

[00:11:19] Speaker 01:
Does that perhaps connote to you that there might be a religious basis to his use of the word evil?

[00:11:25] Speaker 03:
Some people, maybe even many people, would read that and invoke in their minds a religious connotation.

[00:11:31] Speaker 01:
Some people would, then you would stipulate that this should be reversed and remanded for a trial on the issue of fact of whether a reasonable person would know there was a religious claim?

[00:11:43] Speaker 03:
I would not, Your Honor, because the record here shows that WSDOT received exemption requests from other employees at WSDOT who stated an objection to abortion or an objection to fetal stem cells that did not, excuse me, that identified or were based on non-religious reasons. What should he have done more in his statement here? There are a variety of additional things that he could have included. The most straightforward thing would for him to have been to identify his Catholic faith.

[00:12:11] Speaker 04:
But I thought Ms.

[00:12:12] Speaker 03:
Fermo testified that we don't expect people to do that. They don't expect that, and it's not required, but that would have been the most straightforward way, and it's the way that many of the employees in the variety of cases cited by Ahman on the other side.

[00:12:25] Speaker 04:
Ms. Fermo said people didn't have to identify their faith. So what if he had just said, based on my religious beliefs, I will not have the blood of any baby on my hands?

[00:12:35] Speaker 03:
I don't think that would get over the line because that is the same type of conclusory language that Detweiler cautioned against and is really no different from the box that he checked on the form. There needs to be something more than just a labeling of what follows as religion.

[00:12:48] Speaker 01:
There needs to be a, as Detweiler... Let me read to you what Judge Hall found to be sufficient in Heller. She found on the basis of Redmond, I am not able to work on Saturday because of my religious obligation. It's efficient.

[00:13:08] Speaker 03:
Which case was that, Your Honor?

[00:13:09] Speaker 01:
I missed your… That was Redmond. This is the Heller case. She has a citation from Redmond.

[00:13:15] Speaker 03:
Heller cites to Redmond the Seventh Circuit decision. Excuse me. I don't know what happened there. The Seventh Circuit decision. In that case, the court specifically noted… that that instruction or practice came from the Bible. And likewise, in Heller, which my colleague on the other side cited, the employer was aware of the fact that the employee was Jewish and needed to attend the ceremony, which was Jewish in nature. That was the first thing that the court mentioned.

[00:13:43] Speaker 01:
But you knew that Amon was a Catholic, it so says in district court opinion.

[00:13:49] Speaker 03:
Washtenaw did not know that he was Catholic at the time. He has The district court concluded that he had a sincere religious belief rooted in Catholicism at the time, but he did not find that Ouachita knew that or had notice of that.

[00:14:01] Speaker 04:
You have to put yourself in the perspective of Mr. Amin, who's not a lawyer, who's just someone who's working here and fills out a form. I mean, when somebody writes that they devalue human life, don't most people associate that with a view of abortion?

[00:14:17] Speaker 03:
I don't think so, Your Honor. Again, the record in this case shows that there were employees who submitted objections to the vaccine based on opposition to the use of fetal stem cells or abortion that were not based or rooted in religion. And there are a variety of cases.

[00:14:31] Speaker 04:
Right, but the whole language of this, right, the blood, evil, devalues human life. I mean, this is all in the terminology, if you will, of a religious objection, no?

[00:14:44] Speaker 03:
It's not. If anything, it invokes a moral or perhaps a philosophical objection to it, but does not invoke the type of religious terminology that opponents of— Is it your position that religion is not moral?

[00:14:58] Speaker 03:
I don't have an opinion on whether religion is moral or not, but there certainly can be moral views that are not religious in nature.

[00:15:04] Speaker 00:
Right. I mean, he could say, I have a moral objection to this, or he has this objection based on money, for example— But the question is, when he says he's worried about having the blood of a baby, whether that's enough to put the state on notice that what he's talking about is an aborted fetus.

[00:15:28] Speaker 00:
So you're saying that even if he were to say, I am opposed to using aborted fetuses for a vaccine, that would not be sufficient?

[00:15:39] Speaker 03:
It would not be sufficient. There would need to be, again, that nexus that Detweiler talked about. Because of my Catholic faith, because of my views on abortion that are informed by my Christianity. That is the type of language, and those are just representative.

[00:15:52] Speaker 00:
What's missing here, as I understand it from your point of view, is any nexus between his objection and religion.

[00:16:00] Speaker 03:
That's correct, Your Honor.

[00:16:01] Speaker 04:
I mean, but while I talked about this, I mean, it said, look, there's a distinction between testing, which was what was at issue there, and the vaccine. And it's been recognized by lots of courts that there's a recognized religious objection to the vaccine based on abortion. And so knowing that, I mean, if you just got this form in response to somebody who filled out a religious exemption – Why would we not treat this for what it apparently is, which is a religious statement?

[00:16:33] Speaker 03:
Again, Your Honor, the record in this case shows that WSDOT received exemption requests that oppose the vaccine based on the use of fetal stem cells. Well, those aren't in front of us. I mean, all we can look at is what we have here. Well, the testimony of Amy Fermo, who was the chair of the committee... who evaluated these requests and reviewed them, testified that WSDOT did receive exemption requests that stated opposition to abortion and stem cells that were not based on religion. That's at 1SCR53.

[00:16:58] Speaker 04:
Right, but my point is we have to evaluate his statement, right? We're looking at his statement and asking, would that have put... the employer on notice that there was a religious objection to this. And Ms. Furmos said, well, he didn't, we don't expect people to have to identify their actual faith. So if he wasn't expected to do that and he filled out a religious exemption and use these other things, I'm still trying to ask myself, what more would we demand he do?

[00:17:25] Speaker 03:
Again, the most straightforward way would be to him to have identified his Catholic faith as the basis of his objection.

[00:17:31] Speaker 04:
Right. But what do we do with her testimony that says we don't actually don't require people to do that?

[00:17:36] Speaker 03:
What she was referring to there is that there are additional ways to convey a religious objection to something without identifying.

[00:17:41] Speaker 00:
Okay, so if he just said everything he said, and I am opposed to abortion, that wouldn't be enough in your view, right?

[00:17:52] Speaker 03:
That wouldn't, Your Honor.

[00:17:53] Speaker 00:
Because people can be opposed to abortion that has nothing to do with religion.

[00:17:57] Speaker 03:
Absolutely. Courts have recognized this. Even the Supreme Court and Dobbs recognize that there are philosophical and moral opposition to abortion issues. that have nothing to do with religion.

[00:18:05] Speaker 04:
So what if he said, I am opposed to abortion because of my religion?

[00:18:08] Speaker 03:
That would not have been sufficient, I don't think, because, again, that is the type of labeling or conclusory language that is no different from the checkbox, and I don't think that that would satisfy the empire.

[00:18:18] Speaker 04:
But what if he said, I can't take the vaccine because I'm opposed to abortion because my religion says that abortion is evil?

[00:18:27] Speaker 03:
I think that likely would qualify and get him over.

[00:18:30] Speaker 00:
Well, that seems odd to me because the word evil, I mean, of course, it's used as Judge Beha indicated. But if you look at the definition for evil, almost every definition of Merriam-Webster's dictionary doesn't have anything to do with religion. I mean, it's usually a moral or a subjective judgment. So I'm not sure that that answers the question.

[00:18:53] Speaker 00:
And you don't have to be Catholic to oppose abortion on religious grounds, so that doesn't quite get you over the finish line.

[00:19:04] Speaker 03:
That is also true.

[00:19:05] Speaker 00:
So now I'm trying to figure out, I appreciate that there's other exemptions that have been granted, but what you're saying, if I get it, is that just because you say I don't like the baby's blood on my hands, that that doesn't fairly identify a religious objection.

[00:19:31] Speaker 03:
That's correct. That does not, again, there is no nexus to the person's faith. There is no religious basis identified.

[00:19:39] Speaker 00:
And so if he says, in addition, because it violates my religion, would that be okay?

[00:19:47] Speaker 03:
I don't think that would under Detweiler, Your Honor. I think that that is a type of, again, a label or a conclusory sentence that doesn't really connect the objection to the religious belief.

[00:19:58] Speaker 00:
So if he says all the things he said, and I'm opposed because of my religion, whose tenants don't permit use of baby parts, would that be okay?

[00:20:12] Speaker 03:
I think that likely would qualify and get him over the notice hurdle.

[00:20:16] Speaker 00:
We're kind of splitting hairs here. You know what I'm saying? I appreciate that this may have left the state in an ambiguous situation.

[00:20:28] Speaker 03:
Dan, I see I'm over your time, but if I may answer and continue.

[00:20:32] Speaker 03:
The other thing I wanted to get to, and I'll just briefly note, is Washtau provided him with opportunities to clarify his requests, and he didn't. They sent him an initial letter that informed him that he did not have sufficient information to identify the religious basis. Most people, in response to something like that, would question what additional information can I provide, or would have provided it.

[00:20:54] Speaker 01:
Did they ask him, what particular tenet of your religion does this violate?

[00:20:59] Speaker 03:
They did not. I don't know that the employer could do that lawfully, but I will say that the record shows that there were employees of WSDOT who received these identical notices stating that the requests lacked sufficient information to enable WSDOT to make a determination, and those employees supplemented them with additional information.

[00:21:17] Speaker 01:
Did they tell Mr. Ahman how the other employees supplemented it and that would be sufficient?

[00:21:22] Speaker 03:
No, because Mr. Ahman ignored the requests and didn't respond to them.

[00:21:25] Speaker 01:
But they didn't ask him that question, did they? They didn't supply that information. They just said, can you tell us more? They didn't say, and other employees have said this and that has been sufficient. Is that your case? They didn't ask him that.

[00:21:38] Speaker 03:
They did not ask him that.

[00:21:39] Speaker 04:
Well, I mean, I think this gets into, you know, what our decision in Heller talks about, right, when it says, well.

[00:21:47] Speaker 04:
They only need to have enough information to permit the employer to understand the existence of the conflict, and then they go on to say any greater notice requirement would permit an employer to delve into the religious practices of an employee. And so I guess I question maybe some employees did do that. The question is whether the law requires them to do that.

[00:22:11] Speaker 04:
Again, in Heller, though, immediately after the court— We don't usually quiz people about their religious practices.

[00:22:17] Speaker 03:
Right, and Rostock wasn't quizzing them. They were asking for enough information to determine that this stated objection was rooted in religion and not a non-religious belief, which had been reflected in other requests that they had received. And in Heller, I will note that immediately after the court references that standard about just having enough information to show the existence, the first thing it says is that Young and Bowman knew that Heller was Jewish. Young knew that Heller's wife was studying for conversion. Those are central points here. that are missing here. The employer did not know that Amin was Catholic.

[00:22:49] Speaker 03:
The record shows that. And if I may, Your Honor, I know I'm well over time, but in light of these questions, the concern that Heller identified was a situation where an employer is being asked to delve deeply into someone's religious beliefs. In other words, to say, does your faith really require you to take Saturday morning off work or to attend Friday night religious services? That concern is not at issue here. WSDOT simply wanted enough information to understand that this was rooted in a religious objection and not a non-religious objection.

[00:23:17] Speaker 04:
Okay. Thank you very much. Unless my colleagues have further questions, we'll hear a rebuttal. Thank you. Thank you.

[00:23:31] Speaker 02:
It feels like... Talking about what Mr. Ahmed said, we're listening to only one side of the phone conversation. You can't understand what he said in response unless you look at what the question was. How does this conflict with your strongly held religious beliefs? Any vaccine that was brought about by the use of baby parts in the research and development process or by using them in the ingredients will not be used on me with my knowledge because, and then he goes on to say, it's evil, selfish, and devalues human life. That should be enough to notify WSDOT of the existence of a conflict in compliance with the Heller decision.

[00:24:06] Speaker 00:
We're kind of in this situation where you're asking us to step in and say, without the specific identification of religion, that he's done enough because we, as judges, know that sometimes abortion is a religious belief.

[00:24:25] Speaker 02:
But he's answering, I'm not quite asking you to go that far. Because he's answering a question. How does your religious belief prevent you from receiving this? And then he endeavors to provide an answer.

[00:24:39] Speaker 02:
Judge Bress asks a good question about what more is required and to what purpose. Right. If he said I'm Catholic and. Obviously, you pointed out that human resources director Fermo said that that wasn't required. None of the forms asked for that. Nobody followed up to find out if this was a religious belief. But other than knowing that it's religious in nature and it's conflict, plus he's got additional detail that he's provided here, if we're going to go any further than that, we're going to need employees to go get a theological advisor to say, Why do I need to do this to bear consistent witness to my faith, to avoid material cooperation with something that I think is evil, et cetera?

[00:25:21] Speaker 00:
He could do something pretty simple. He doesn't have to be Catholic to have this religious belief. He could just say, he could say I'm Catholic, and that might do it, right? But he might not be Catholic. Maybe he's a member of the Universal Life Christian Church or something like that. He could just put that in. So it's a question of degree and notice, it seems to me.

[00:25:45] Speaker 00:
not so much what he did put in, but what he didn't put in. And so the point that we have to decide is, is this notice enough to the state of Washington?

[00:25:58] Speaker 00:
And you say, well, yes, because you should know, meaning state of Washington or us judges, we should know that this is abortion related and therefore a religious belief. So we have to kind of fill in the blank is what you're saying.

[00:26:14] Speaker 02:
If I'm over my time, may I answer? Yes. I don't believe that I'm really asking you to fill in any blanks. The question is, what is your religious belief? He says it. The answer is his statement of religious belief. You don't need to fill in any gaps to conclude that that's religion. That's his best attempt to encapsulate what his religious belief is in order to put them on notice. That's why I think we get judgment as a matter of law, but certainly a question of fact at a minimum.

[00:26:40] Speaker 00:
And so I'm just trying to imagine the trial now.

[00:26:45] Speaker 00:
So you're going to bring in, he's then going to testify, I am Catholic or whatever, and you're going to bring in a priest or whomever. And then, I don't know what the state of Washington will do, they'll say, well, now we know what we didn't know before. So what would the trial look like? Because you said, alternatively, let's have a trial.

[00:27:02] Speaker 02:
You're going to have to tell the district court judge how to instruct the jury. And I'm asking the court to instruct the jury that if they know he has a religious conflict with the vaccine requirement, that that is sufficient to satisfy the second element of his prima facie case in accordance with Heller.

[00:27:20] Speaker 02:
Does that answer your question?

[00:27:22] Speaker 04:
It does. Thank you.

[00:27:22] Speaker 02:
Thank you, Your Honor.

[00:27:23] Speaker 04:
Okay. Thank you both. Thanks, both counsel, for the briefing and argument. The matter is submitted and we're concluded for the day.