Smith v. Burbank Unified School Dist.

Filed 10/7/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT DOUGLAS SMITH, B347288 Plaintiff and Appellant, Los Angeles County Super. Ct. No. 23STCV02429 v. BURBANK UNIFIED SCHOOL DISTRICT, Defendant and Respondent. APPEAL from a judgment of the Superior Court of Los Angeles County, Gail Killefer, Judge. Affirmed. Benowitz Law Corporation and Louis Benowitz; Bhatia Law Firm and Sunjay Bhatia; Jeff Lewis Law and Jeffrey Lewis for Plaintiff and Appellant. Atkinson, Anderson, Loya, Ruud & Romo, Mark R. Bresee, Marlon C. Wadlington and Scott D. Danforth for Defendant and Respondent. ____________________ Douglas Smith is a devout Christian whose faith compelled him to refuse the COVID-19 vaccination that his former employer Burbank Unified School District required of him. In response to Smith’s request for a religious exemption to the vaccine mandate, the District placed Smith on an indefinite unpaid leave of absence. Smith asked for, but the District refused to provide, masking and weekly PCR testing as a reasonable accommodation. Smith was on unpaid leave from the District for about a year before he began working at an unrelated school that had no vaccine mandate. Smith sued the District, bringing three claims under the Fair Employment and Housing Act (FEHA), Government Code sections 12900, et seq.: religious discrimination, failure to prevent discrimination, and retaliation. The District filed a summary judgment motion, which the trial court granted. We affirm. The trial court correctly found the District met its burden of establishing unpaid leave was the only reasonable accommodation the District could offer to unvaccinated teachers that did not pose an undue burden. Undesignated statutory citations refer to the Government Code. I Our recounting of the facts liberally construes evidence in Smith’s support and resolves doubts in his favor. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) We deny as moot and irrelevant Smith’s request for judicial notice. A Smith began working for the District in 1992. The District hired him to teach high school chemistry and physical science. Aside from a year-and-a-half detour to pursue a career in music, Smith maintained full-time employment with the District until the fall of 2021. All of his performance evaluations were positive and he generally enjoyed his job. Smith had planned to work for the District until retirement. 2  A normal workday for Smith usually began by around 7:15 or 7:30 a.m., when he would check his emails and get his classroom set up for the day. His first period class would begin at 8:00 a.m., and he would teach either five or six 55-minute classes throughout the day. Sometimes he tutored students after class. Every day, he would interact with his colleagues to exchange ideas, trade labs, or have lunch together. In the spring of 2020, the District shuttered its schools to comply with Governor Newsom’s Executive Order in light of the COVID-19 pandemic. Instead of in-person instruction, the District transitioned to a distance-learning approach for the remainder of 2020 into early 2021. Smith and the other teachers worked mostly remotely for the next few months, using Google Classroom and Zoom. Labs, which used to be a hands-on experience for Smith’s students, now consisted of watching videos of Smith and another teacher performing labs. Smith found his job more difficult with remote instruction, because he could not tell if his students were paying attention. He also believed his lab videos were not as effective as students performing experiments themselves. By April 2021, the District had shifted from full-time distance learning to a “hybrid” teaching model that included both virtual and in-person instruction. B The District decided to resume full-time in-person classes for the 2021-2022 school year. As the District was in the process of formulating its reopening plan, in August 2021, the Department of Public Health issued a public health order, stating “vaccination against COVID- 19 is the most effective means of preventing infection with the 3 COVID-19 virus . . . Current CDPH K-12 guidance strongly recommends vaccinations for all eligible individuals, thereby reducing COVID-19 rates throughout the community, including in schools . . . .” That same August 2021 order also required school districts to collect the vaccination status of all employees. The District complied. Just as the school year was beginning and in-person instruction was set to resume, public health officials reported a spike in COVID-19 case rates across the county, which prompted the District’s Board of Education to make vaccination mandatory for employees. The Board determined this was the most effective way it could protect the safety of its students and others. The Board reasoned that the absence of an employee vaccine mandate could pose a danger to students and the public and could risk its entire operation. In her deposition, Dr. Sarah Niemann, who was the District’s Assistant Superintendent of Human Resources, testified the main reason the Board believed a vaccine mandate was necessary was because District had experienced “major operational impacts when [schools] had reopened in hybrid with constant closures, sick employees and staff, and the death of some spouses of staff, due to COVID.” In September 2021, the Board approved Resolution 7, which required all District staff to be fully vaccinated against COVID-19 or to get an authorized exemption. Resolution 7 also barred unvaccinated employees from physically going on school campuses after October 25, 2021. As soon as Smith heard about the vaccine mandate, he requested a religious exemption. Roughly 100 District employees 4 did the same. Employees seeking exemptions cited their religion, medical reasons, or other reasons. The District granted every exemption request it received, including Smith’s. The District approached all exempted employees the same way—regardless of the basis of their exemption. To figure out the accommodations it could provide for these employees, the District evaluated many factors. One was the extent to which these employees’ responsibilities required in-person contact with students, faculty, and staff members. Also relevant were the logistics of covering these employee’s responsibilities in the event of their COVID-19 infections or exposures, and whether any consequences would affect the District’s ability to meet the state’s mandates for supervision of students. Overarching considerations were avoiding disruption to students’ education and providing students and staff with the safest possible environment. For five of the employees who requested an exemption, the District was able to offer an accommodation other than an unpaid leave of absence because their job responsibilities did not require in-person contact with others. Three of these employees had religious exemptions and the two others had medical exemptions. None of these employees was a teacher—all worked in isolated office jobs. The District accommodated them by requiring them to test twice a week, work behind a plastic barrier, wear masks, and maintain six feet of distance from others. The remaining exempted employees had frequent in-person contact with others. The District did not permit any unvaccinated employees to teach in-person on campus while its vaccine mandate was in effect. For these employees, unpaid leave was the only accommodation the District could identify that 5 it did not find unduly burdensome. Smith was one of those employees. C In October 2021, the District sent Smith its written response to his request for a religious accommodation. In its letter, the District noted it was “not disputing the sincerity of [Smith’s] religious beliefs at this time,” but was “unable to identify a reasonable accommodation, other than unpaid leave, that would not pose an undue burden on the District.” The letter explained this decision to Smith as follows: “allowing you to forgo vaccination creates an unreasonable risk of infection and illness for you and for all other employees and students, particularly those who are unvaccinated and immunocompromised.” This risk “poses an unacceptable and undue burden on the District, as it is the District’s priority to protect its students and staff, and to minimize disruption and avoid another shut-down so that students can receive high quality education in-person.” Other than an unpaid leave of absence, there was no possible accommodation that would provide “the health and safety protections of vaccines, so as to promote a safe indoor environment for all staff and students against potential exposure to COVID-19.” According to the letter, if Smith continued to remain unvaccinated, the District gave him two options: submit a request for an unpaid leave of absence, or resign. The letter further instructed Smith to contact Niemann in the Human Resources department if he wished “to explore additional leave or resignation/retirement options, determined on an individual basis.” 6  Around this time, Smith met with Sharon Cuseo, who at that time was an Assistant Superintendent for the District. Cuseo reiterated to Smith that the District approved his exemption, but the only accommodation it could offer him was unpaid leave. A few days after receiving the letter, Smith asked for an unpaid leave of absence from October 25, 2021 to May 30, 2022. He noted he wished to use all of his accrued paid time off during his leave. By the end of October 2021, the District emailed Smith that his paid leave would run out on March 7, 2022, and he would be on unpaid leave after that. While on unpaid leave, Smith would be responsible for paying the full premiums of his health and welfare benefits, totaling $951.34 per month, if he wanted to continue coverage. According to Niemann, since at least 2018, the District had a policy of requiring employees on unpaid leave who wished to keep their benefits to pay their insurance premiums directly to the District. The District applied this policy to all employees on unpaid leave. In November 2021, Smith emailed Niemann a letter explaining that his religious beliefs forbade him from receiving the COVID vaccine because the vaccines were “still the subject of research and/or tests that are compromised with substances that are toxic, carcinogenic, and not for human use in any quantities, even trace amounts.” While noting he respected the District’s “desire to maintain safety for all staff,” Smith asked that the District accommodate his religious exemption by offering him PCR testing because “swab” testing could still expose him to carcinogens. Smith also noted the letter was written 7 documentation “confirming [his] preference to remain in work, and objecting to and appealing the leave without pay status.” After a few weeks with no response, in December 2021, Smith emailed Niemann again to ask for a formal written response to his letter. Niemann responded the same day, telling Smith he had a right to appeal the District’s accommodation decision to Superintendent Matt Hill and to file a formal complaint with the District. Smith responded that he intended to pursue both. Shortly thereafter, Smith submitted his appeal to Hill over email. Hill responded and denied Smith’s appeal. In January 2022, Smith emailed Niemann his formal written complaint regarding the District’s accommodation to his vaccine exemption. In his email, Smith asserted the District was not respecting his “religious sovereignty," which he defined as “[his] right to forgo vaccinations based on [his] religious beliefs,” which violated the District’s rules on diversity, equity, and inclusion. The District investigated Smith’s complaint as a complaint of religious discrimination. About a month after Smith submitted his complaint, the District sent him a report summarizing its investigation findings. The report rejected Smith’s claim that the District discriminated against on the basis of his religion by refusing his preferred accommodation of PCR testing. Neither twice-weekly testing nor remote work were feasible accommodations. Testing in lieu of vaccination would unduly burden the District because unvaccinated employees were at a greater risk of contracting and spreading COVID-19 within the workplace and community. Allowing Smith on campus while unvaccinated would increase 8 the risk of COVID-19 transmission and infection. And the District did not have any opportunities for Smith to work remotely because in-person instruction and interaction with students were essential duties for teachers. In May 2022, Smith turned in another form extending his leave of absence through May 2023. By this time, Smith was exploring other employment opportunities. He started applying and interviewing for teaching jobs across town, including at Magnolia Public Schools. Magnolia, which did not have a vaccine mandate, hired Smith. Smith began working as a chemistry teacher at one of Magnolia’s schools in January 2023. Nonetheless, he still sent the District another leave of absence form extending his leave to June 2024. In January 2024, the District asked Smith if he planned to return for the 2024-2025 school year. The District’s vaccine mandate was no longer in effect, and unvaccinated employees were eligible to return to their former positions. Smith told the District he had a new job and would not be returning. He resigned effective June 2024. D Smith sued the District. His operative complaint has three causes of action under FEHA: (1) unlawful religious discrimination; (2) failure to prevent unlawful discrimination; and (3) retaliation for seeking accommodations for his religion. The District moved for summary judgment, arguing it had legitimate, non-discriminatory, and non-retaliatory reasons for placing Smith on unpaid leave and for denying his requested accommodations. Moreover, no evidence supported Smith’s discrimination or retaliation claims. 9  The District included a sworn declaration from Dr. John Paramo, who, at the time, was the District’s Assistant Superintendent of Education Services. Paramo declared “[t]he undue burden considered by the District, when determining what reasonable accommodation could be offered to employees exempted from the vaccine mandate, was the logistical difficulties to ensure adequate coverage of its classrooms, ability to meet the state’s mandates for required supervision of students, and avoiding disruption to the education, activities, and services to its students, while providing the safest environment to learn and work for [the District’s] students and staff.” The trial court granted the District’s motion. It found Smith established a prima facie case for religious discrimination, but the District satisfied its burden of showing unpaid leave was the only reasonable accommodation that did not pose an undue burden on the District. The court rejected Smith’s assertion that the District failed to consider accommodations besides unpaid leave, finding Smith offered “nothing more than mere speculation about the existence and feasibility of alternative accommodations.” While noting Smith said he would have accepted the accommodations of maintaining six feet of distance from his students, teaching behind a plastic barrier, masking, and PCR testing twice a week, or remote teaching, the court found Smith failed “to show that this method of teaching allowed him to remain fully isolated with no physical contact with both students and faculty, while allowing him to effectively teach and supervise his students.” Furthermore, Smith failed to show that these proposed accommodations would be as effective as vaccination. 10  Because it found Smith’s religious discrimination claim failed, the trial court likewise ruled Smith could not prevail on his claims for failure to prevent discrimination and retaliation. II FEHA prohibits employers from discriminating against a person because of conflict between the person’s religious belief and employment requirements unless the employer can demonstrate it explored any available reasonable alternative means of accommodating the religious belief or observance, but is unable reasonably to accommodate the religious belief without undue hardship. (§ 12940, subd. (l)(1).) No one disputes that Smith established a prima facie case of religious discrimination under FEHA. The only issue is whether the trial court correctly decided the District had explored reasonable accommodations of Smith’s religious beliefs but was unable to accommodate his religion without undue hardship. (See § 12940, subd. (l)(1); California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1011.) We independently decide the propriety of summary judgment. (See Aguilar, supra, 25 Cal.4th at p. 860.) On appeal, Smith argues involuntary and indefinite unpaid leave can never be a reasonable accommodation under FEHA. The main authority Smith cites is FEHA’s implementing regulations. We quote these regulations: “A reasonable accommodation is one that eliminates the conflict between the religious practice and the job requirement and may include, but is not limited to, job restructuring, job reassignment, modification of work practices, or allowing time off in an amount equal to the amount of non-regularly scheduled 11 time the employee has worked in order to avoid a conflict with his or her religious observances. Unless expressly requested by an employee, an accommodation is not reasonable if it requires segregation of an employee from customers or the general public.” (Cal. Code Regs., tit. 2, § 11062, subd. (a), emphasis added.) Smith directs us to the last sentence, contending unpaid leave cannot be a reasonable accommodation because it segregates him. This argument fails. Unpaid leave was a reasonable accommodation because it eliminated the conflict between Smith’s religious practice and the District’s requirement that he receive the COVID vaccination. (Cal. Code Regs., tit. 2, § 11062, subd. (a).) Smith also retained the ability to return to his former position when the District lifted the vaccine mandate. We consult federal cases. (See Guz v. Bechtel Nat. Inc., (2000) 24 Cal.4th 317, 354.) And as the trial court observed, the United States Supreme Court has found that, in certain contexts, unpaid leave can be a reasonable accommodation for a religious practice. (Ansonia Bd. of Educ. v. Philbrook (1986) 479 U.S. 60, 70.) The Ansonia court reasoned “[t]he provision of unpaid leave eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully religious holy days and requires him only to give up compensation for a day that he did not in fact work.” (Ibid.) Given the record’s undisputed facts about the dangers of COVID-19 and the District’s obligation to provide safety to its employees and students, we reject Smith’s literal reading of the regulation’s last sentence. The fact that unpaid leave necessarily resulted in segregation of unvaccinated employees does not automatically disqualify it as a reasonable accommodation. 12 Smith points out that other federal cases have declined to find unpaid leave a reasonable accommodation. But that does not help Smith prove that it was unreasonable here. (See Soldinger v. Northwest Airlines (1996) 51 Cal.App.4th 345, 370.) Smith’s remaining authorities are irrelevant. We disregard the unpublished opinion Smith cites in his briefs. (See Cal. Rules of Court, rule 8.1115(a) & (b).) Hartstein v. Hyatt Corporation (9th Cir. 2023) 82 F.4th 825, 832 is not pertinent. That decision considered whether a temporary layoff, with no specified return date, is a discharge for purposes of Labor Code § 201. Nor is Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036 on point. It determined the definition of “adverse employment action” in FEHA retaliation claims. Neither case bears on the question of whether unpaid leave can be a reasonable accommodation. Smith also accuses the trial court of failing to view the evidence in the light most favorable to him “by accepting [the District’s] mere recitation of potential hardships as proof that allowing Mr. Smith to return to work would pose an undue hardship on [the District’s] business operations.” If the court had done so, Smith contends, it would have denied summary judgment because the “logistical difficulties” Paramo cited in his declaration do not “rise to the level of being undue when viewed in relation to [the District’s] operations.” This argument is incorrect. Giving Smith the benefit of the doubt on summary judgment does not require courts to disregard the District’s evidence. (See Aguilar, supra, 25 Cal.4th at p. 850 [triable issues of material fact only exist where “the evidence would allow a reasonable trier of fact to find the underlying fact 13 in favor of the party opposing the motion in accordance with the applicable standard of proof.”].) Smith did not dispute the Board’s determination that requiring full vaccination of the District’s employees was the most effective way to protect the health and safety of its employees and students. He provided no evidence to counter Paramo’s declaration about the logistical burden the District would face if it allowed accommodations other than unpaid leave for teachers. Nor did Smith controvert Niemann’s testimony about the “major operational impacts” the District experienced when it partially reopened schools without a vaccine mandate. Instead, Smith claimed “that allowing one more unvaccinated person onto a campus with potentially hundreds of such persons posed no meaningful hardship at all.” This is argument, not evidence. The District treated all vaccine exemption requests the same way: it granted each request, gave all exempted teachers the same accommodation of unpaid leave, and gave alternative accommodations only to non-teacher employees who did not have daily contact with others. The trial court was right to reject Smith’s allegation that intentional religious discrimination motivated the District to place him on unpaid leave. DISPOSITION We affirm and award costs to the District. WILEY, J. We concur: STRATTON, P. J. SCHERB, J. 14