Villareal v. Rocky Knoll Health Care Ctr.

• Decision Date: 21 November 2022
• Docket Number: 21-CV-729
• Parties: RUTH VILLAREAL, Plaintiff, v. ROCKY KNOLL HEALTH CARE CENTER, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

RUTH VILLAREAL, Plaintiff,
v.
ROCKY KNOLL HEALTH CARE CENTER, Defendant.

No. 21-CV-729

United States District Court, E.D. Wisconsin

November 21, 2022

DECISION AND ORDER

WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE

Plaintiff Ruth Villareal was discharged from her position as a licensed practical nurse with defendant Rocky Knoll Health Care Center in June 2020. (ECF No. 1 at ¶¶ 5, 17.) Villareal alleges that in terminating her employment Rocky Knoll discriminated against her and failed to accommodate her religious beliefs in violation of Title VII of the Civil Rights Act of 1964. (ECF No. 1 at ¶¶ 24, 25.) Rocky Knoll has moved for summary judgment. (ECF No. 28.) That motion is fully briefed and ready for resolution.

1. Undisputed Facts

Rocky Knoll is a licensed and certified Skilled Nursing Facility owned and operated by Sheboygan County. (ECF No. 37 at ¶¶ 1-2.) Rocky Knoll hired Villareal in March 2012 as a licensed practical nurse. (ECF No. 37 at ¶ 3.) Rocky Knoll's licensed

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practical nurses provide direct nursing care to Rocky Knoll residents and assist in supervising nursing assistants and other attendants. (ECF No. 37 at ¶ 4.)

On March 11, 2020, the World Health Organization declared COVID-19 a pandemic. (ECF No. 37 at ¶ 6.) On March 13, 2020, a nationwide state of emergency was declared. (ECF No. 37 at ¶ 7.) By the summer of 2020 the Center for Disease Control and Prevention (CDC) had identified older adults and individuals with underlying medical conditions as those most susceptible to severe illness or death from COVID-19. (ECF No. 37 at ¶ 12.)

In April and May of 2020 another nursing home in Sheboygan County, Sunny Ridge Nursing and Rehabilitation Center, experienced a major COVID-19 outbreak, which required intervention by the Wisconsin National Guard. (ECF No. 37 at ¶ 10.) The Sunny Ridge outbreak resulted in the first COVID-19-related deaths in Sheboygan County. (ECF No. 37 at ¶ 11.) As with Sunny Ridge, in June 2020 a substantial portion of Rocky Knoll's nursing home residents were those considered most vulnerable to COVID-19. (ECF No. 37 at ¶13.)

During the summer of 2020 the CDC recommended COVID-19 testing for health care professionals working in nursing homes. Specifically, it recommended initial viral testing of all health care professionals in nursing homes along with additional testing thereafter. (ECF No. 37 at ¶ 14.) Per the CDC's recommendations, on or about June 11, 2020, Rocky Knoll instituted a policy mandating COVID-19 testing every two weeks for

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staff, vendors, and volunteers. (ECF No. 37 at ¶ 15.) Rocky Knoll's COVID-19 testing policy provided the following:

a. All Rocky Knoll staff, contracted vendors, and volunteers working within a two-week time period of testing will be required to test for COVID-19 every two weeks as scheduled or as directed by Sheboygan County Public Health

b. Rocky Knoll reserves the right to not allow entrance to any staff, contracted vendors, and/or volunteers during the time of a pandemic or any outbreak of disease in the community that is determined to threaten the health and or welfare of our residents or employees

c. There will be no charge to the employee, contracted vendors, or volunteers for the COVID-19 test.

d. Refusal of testing for Rocky Knoll employees will be considered misconduct and will result in suspension without pay/and or termination. If an employee refuses to be tested he/she will be suspended for 5 days without pay. If the employee chooses to get tested within those five days the employee may return to work. If the employee refuses to get tested after five days, the employee will be terminated. Rocky Knoll reserves the right to deny entry of any contracted vendor or volunteer who does not get tested.

e. Requests for an accommodation based on disability, religion or other applicable protected status must be made in writing to the Rocky Knoll Administrator at least two working days prior to the next scheduled testing date.

(ECF No. 37 at ¶ 16.) The policy's express purpose was “[t]o help prevent and/or manage the possible introduction and/or spread of COVID-19 in the facility and to ensure the safety of all residents and co-workers.” (ECF No. 37 at ¶ 17.)

Rocky Knoll's policy was developed by its administrator, its infection preventionist, its director of clinical services, Sheboygan County Human Resources, the

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Sheboygan County Administrator, and Sheboygan County Corporation Counsel. (ECF No. 37 at ¶ 20.) Rocky Knoll set up testing clinics for staff and scheduled times during which staff were to report for testing. (ECF No. 37 at ¶ 22.) Rocky Knoll used a COVID-19 Polymerase Chain Reaction (PCR) test which involved the insertion of a swab in one's nostril. (ECF No. 37 at ¶ 24.)

On June 12, 2020, the COVID-19 testing policy went into effect and was communicated to Rocky Knoll employees. (ECF No. 37 at ¶ 25.) The same day, Villareal emailed Rocky Knoll's Nursing Home Administrator, Kayla Clinton, to “formally request accommodation to decline COVID-19 testing based on religious as well as philosophical understandings.” (ECF No. 37 at ¶ 26.) In the same email Villareal suggested a proposed accommodation that she would “continue to wear [her] county-provided N95 mask, ... continue to check [her] temperature when entering and leaving the facility[, and adhere] to standard precautions such as washing [her] hands.” (ECF No. 37 at ¶ 27.) These proposed accommodations were already required of all Rocky Knoll employees. (ECF No. 37 at ¶ 28.)

Clinton responded the same day by requesting additional information to understand what tenets of Villareal's religion would prevent her from being tested and whether it was COVID-19 specific. (ECF No. 37 at ¶ 29.) Three days later, on June 15, 2020, Villareal responded in an email with the following:

I follow old law (Old Testament) a[s] well as new law (New Testament). I believe man is subject to ALL of YHVH's laws from the beginning of time

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and that my salvation is based on obedience. [“]Do you not know that your bodies are temples of the Ruac, who is in you, whom you have received from YHVH? You are not your own; you were bought at a price. Therefore[,] honor YHVH with your bodies[.”] (1 Corinthians 6:19-20).

I speak words of healing into my body. I do not base my health on science. I don't know of many viruses of sickness that are around or within my body, only that YHVH has the power to heal me based on my faith. [“]Then suddenly a woman ... [c]ame up behind and touched the fringe of his cloak, for she said to herself, ‘if I only touch his cloak, I will be made well.' Messiah turned, and seeing her said, ‘take heart, daughter, your faith has made you well.'[”] (Mathew[] 9:20-22). [“]Then he touched their eyes [of the blind men] and said, ‘according to your faith let it be done to you.' And their eyes were opened.[”] (Matthew 9:28-30).

I pray for Rocky Knoll and all who step inside. By taking a Covid test I would test my faith. Thank you for your time.

(ECF No. 37 at ¶ 31.) Immediately after receiving Villareal's email, Rocky Knoll- specifically, Sheboygan County Human Resources in consultation with Corporation Counsel-undertook efforts to conduct an individualized assessment to identify a reasonable accommodation for Villareal that would allow her to forego COVID-19 testing. (ECF No. 37 at ¶ 33.) Rocky Knoll assumed that Villareal's request was legitimate and that her religious beliefs were sincerely held. (ECF No. 37 at ¶ 34.) In June 2020 the only guidance from the United States Equal Employment Opportunity Commission (EEOC) related to COVID-19 testing was that mandatory COVID-19 testing by employers did not violate the Americans with Disabilities Act (ADA) and did not prevent an employer from following recommendations by the CDC. (ECF No. 37 at ¶ 35.)

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Rocky Knoll concluded that allowing an untested staff member into the facility posed too great of a risk to the health and safety of its residents, many of which had significantly compromised immune systems. (ECF No. 37 at ¶¶ 36-37.) Rocky Knoll determined that any accommodation that would permit Villareal to work with Rocky Knoll's residents without being tested for COVID-19 would directly compromise the health and safety of those residents. (ECF No. 37 at ¶ 39.)

Rocky Knoll determined that there were two conceivable options for accommodating Villareal's request: offer her an indefinite leave of absence until the need for regular COVID-19 testing subsided or transfer her to a similar healthcare position within Sheboygan County. (ECF No. 37 at ¶ 41.) Rocky Knoll assessed the viability of each option. (ECF No. 37 at ¶ 44.) It determined that it did not have the ability within its budget to provide Villareal with an indefinite leave of absence. (ECF No. 37 at ¶ 46.) As for a lateral transfer, it identified as a potential option an open public health nurse position through the Sheboygan County Department of Health and Human Services, which offered similar pay to Villareal's position, required a similar skill range, and did not require COVID-19 testing. (ECF No. 37 at ¶¶ 47-48.) Upon further review, however, Rocky Knoll learned that the job required a Bachelor of Science in Nursing, a degree Villareal does not have. (ECF No. 37 at ¶¶ 49-51.)

On June 15, 2020, Clinton, on behalf of Rocky Knoll, informed Villareal that Rocky Knoll had evaluated options for her requested accommodation but determined that all

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options would cause Rocky Knoll undue hardship and, therefore, her request was denied. (ECF No. 37 at ¶ 53.) Between June 15 and June 21, 2020, Clinton and Villareal exchanged several emails in which Villareal made it clear that she would not comply with Rocky Knoll's COVID-19 testing policy. (ECF No. 37 at ¶ 54.) Other than these email exchanges, Villareal provided no other information to...