Key Points

  • The Second Appellate District, Division Eight, affirmed summary judgment for Burbank Unified School District on a teacher's FEHA claims for religious discrimination, failure to prevent discrimination and retaliation.
  • The court held unpaid leave was a reasonable accommodation because it eliminated the conflict between the teacher's religious practice and the vaccine mandate, and he could return to his position once the mandate lifted.
  • The panel rejected a literal reading of Cal. Code Regs., tit. 2, section 11062(a), holding that the segregation inherent in unpaid leave does not automatically disqualify it as a reasonable accommodation.
  • The teacher offered argument rather than evidence to rebut the district's declaration and testimony on undue hardship.
  • The district's uniform treatment of all exempted employees defeated the claim of intentional religious discrimination.

A California appeals court held Wednesday that the Burbank Unified School District did not violate state anti-discrimination law when it placed a longtime high school chemistry teacher on indefinite unpaid leave after he refused the COVID-19 vaccine on religious grounds, rejecting his argument that forced unpaid leave can never count as an accommodation of an employee's faith.

A three-justice panel of the Second Appellate District, Division Eight, affirmed summary judgment for the district on all of Douglas Smith's claims under the Fair Employment and Housing Act, or FEHA. Justice Wiley wrote the published opinion, joined by Presiding Justice Stratton and Justice Scherb, and the court awarded costs to the district.

The ruling turns aside a reading of a FEHA regulation that says an accommodation "is not reasonable if it requires segregation of an employee from customers or the general public." The panel held that unpaid leave qualified because it "eliminated the conflict between Smith's religious practice and the District's requirement that he receive the COVID vaccination," and because Smith kept the ability to return to his job once the mandate was lifted.

Smith, whom the opinion describes as a devout Christian, began teaching chemistry and physical science for the district in 1992. After a spike in county case rates as in-person classes resumed, the district's Board of Education in September 2021 approved Resolution 7, which required all staff to be fully vaccinated or obtain an authorized exemption and barred unvaccinated employees from campuses after Oct. 25, 2021.

Roughly 100 employees sought exemptions on religious, medical or other grounds, and the district granted every request, including Smith's. Five employees, none of them teachers, worked in isolated office jobs and were allowed to keep working if they tested twice a week, worked behind a plastic barrier, wore masks and kept six feet from others. Every other exempted employee with frequent in-person contact, Smith among them, was offered only unpaid leave.

In an October 2021 letter, the district told Smith 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." Smith asked instead for masking and PCR testing and appealed to Superintendent Matt Hill, who denied the appeal. A district investigation of his later discrimination complaint concluded that neither twice-weekly testing nor remote work was feasible.

Smith used his accrued paid time off until March 7, 2022, then went unpaid, owing $951.34 a month in premiums to keep his health benefits. In January 2023 he began teaching chemistry at Magnolia Public Schools, which had no vaccine mandate. When the district, its mandate no longer in effect, asked in January 2024 whether he would return, Smith said he had a new job and resigned effective June 2024.

He sued for religious discrimination, failure to prevent discrimination and retaliation. Los Angeles County Superior Court Judge Gail Killefer granted summary judgment, finding that Smith had made out a prima facie case but offered "nothing more than mere speculation about the existence and feasibility of alternative accommodations." Because the discrimination claim failed, Killefer ruled, the other two claims failed as well.

On appeal, Smith argued that involuntary and indefinite unpaid leave can never be a reasonable accommodation under FEHA, pointing to the regulation's sentence on segregation. "This argument fails," Wiley wrote.

The panel looked to federal law, noting that the U.S. Supreme Court in Ansonia Board of Education v. Philbrook found unpaid leave can be a reasonable accommodation in some contexts because it "requires him only to give up compensation for a day that he did not in fact work." Wiley wrote that "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," the court held. That some federal courts have declined to find unpaid leave reasonable, the panel said, does not help Smith prove it was unreasonable in his case. It also found two other cases he cited, Hartstein v. Hyatt Corp. and Yanowitz v. L'Oreal USA Inc., irrelevant to the question.

Smith also argued that Judge Killefer failed to view the evidence in his favor by accepting the district's "mere recitation of potential hardships" as proof of undue hardship. The district had submitted a declaration from Dr. John Paramo, then an assistant superintendent, describing logistical difficulties in covering classrooms and meeting state requirements for student supervision.

The panel disagreed. "Giving Smith the benefit of the doubt on summary judgment does not require courts to disregard the District's evidence," Wiley wrote. Smith did not dispute the board's determination that full vaccination was the most effective safety measure, offered nothing to counter Paramo's declaration, and did not controvert testimony from Dr. Sarah Niemann, the district's assistant superintendent of human resources, about "major operational impacts" during the earlier hybrid reopening.

Instead, the opinion said, Smith claimed "that allowing one more unvaccinated person onto a campus with potentially hundreds of such persons posed no meaningful hardship at all." The panel replied: "This is argument, not evidence."

The court also rejected Smith's theory that intentional religious bias drove the decision, pointing to the district's uniform approach. The district "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," Wiley wrote.

Smith was represented by Louis Benowitz of Benowitz Law Corporation. The school district was represented by Mark R. Bresee of Atkinson, Anderson, Loya, Ruud & Romo.

The appellate court affirmed the trial court's judgment for the district in full and awarded the district its costs.