Bolden-Hardge v. Office of the CA State Controller

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 BRIANNA BOLDEN-HARDGE, No. 2:20-cv-02081-JAM-SCR 10 Plaintiff, 11 v. ORDER 12 OFFICE OF THE CALIFORNIA STATE CONTROLLER, et al., 13 Defendants. 14 15 Before the Court are cross-motions for summary judgment 16 brought by Brianna Bolden-Hardge (“Plaintiff”) and the Office of 17 the California State Controller and seven of its employees 18 (collectively, “Defendants”) on the issue of liability. Pl.’s 19 Mot., ECF No. 50; Defs.’ Mot., ECF No. 89. The motions are fully 20 briefed. See Pl.’s Opp’n, ECF No. 102; Defs.’ Reply, ECF No. 21 106. Defendants also bring a Motion to Exclude Certain Expert 22 Opinions. See Mot. to Exclude, ECF No. 84; Opp’n to Mot. to 23 Exclude, ECF No. 98; Reply for Mot. to Exclude, ECF No. 99. A 24 hearing on these motions was held in this Court on August 26, 25 2025. For the reasons stated at the August 26 hearing and below, 26 the Court denies Defendants’ motion to exclude, and grants in 27 part and denies in part the parties’ cross-motions for summary 28 judgment. 1 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 2 A recitation of the entire factual background is unnecessary 3 given the parties intimate familiarity with this case. The 4 pertinent summary is as follows: Plaintiff began working for the 5 Franchise Tax Board (“FTB”) in 2011. Gleiberman Decl., Ex. 1, 6 Bolden-Hardge Dep. 20:2-20, ECF No. 51-1. In 2017, Plaintiff was 7 hired for a position with the State Controller’s Office (“SCO”). 8 Id. 69:15-70:6. Before she could start her new position with 9 SCO, Plaintiff was asked to sign an oath that the California 10 Constitution requires public employees to take (hereinafter, “the 11 Oath”). Id. 74:20-76:10. The Oath states: 12 I, , do solemnly swear (or affirm) that I will support and defend the Constitution of the United 13 States and the Constitution of the State of California against all enemies, foreign and domestic; that I will 14 bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of 15 California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that 16 I will well and faithfully discharge the duties upon which I am about to enter. 17 18 Cal. Const. art. XX, § 3. 19 Plaintiff told SCO employees that her religious beliefs 20 prevented her from signing the Oath. Bolden-Hardge Dep. 76:24- 21 78:21. After discussing the issue with an SCO employee, 22 Plaintiff wrote an addendum that she proposed attaching to the 23 signed Oath (hereinafter, “the Proposed Addendum”). Id. 79:4-18. 24 The Proposed Addendum stated: 25 I, [Plaintiff], vow to uphold the Constitutions of the United States and that of the State of California while 26 working in my role as an employee of the [SCO]. I will be honest and fair in my dealings and neither dishonor 27 the Office by word nor deed. By signing this oath, I understand that I shall not be required to bear arms, 28 engage in violence, nor participate in political or 1 military affairs. Additionally, I understand that I am not giving up my right to freely exercise my religion, 2 nor am I denouncing my religion by accepting this position. 3 4 Gleiberman Decl., Ex. 1E. SCO did not allow Plaintiff to attach 5 the Proposed Addendum to the Oath and thereafter rescinded her 6 offer of employment because she would not sign the Oath without 7 accommodation. Id. Ex. 1F. 8 Plaintiff brought suit in federal court against SCO and the 9 State Controller of California. Complaint, ECF No. 1. Upon 10 Defendants’ motion, the Court dismissed with prejudice all 11 claims. ECF No. 14. The Ninth Circuit reversed. ECF No. 25; 12 see also Bolden-Hardge v. Off. of California State Controller, 63 13 F.4th 1215 (9th Cir. 2023). Upon remand, Plaintiff filed an 14 amended complaint against SCO and seven of its employees, 15 including the State Controller of California.1 First Amended 16 Complaint (“FAC”), ECF No. 29. The parties now bring cross- 17 motions for summary judgment as to all claims. 18 II. OPINION 19 A. Legal Standard 20 Summary judgment is appropriate when the record, read in the 21 22 1At the August 26, 2025 hearing, the Court was informed that only three of the seven individual defendants named in the FAC have 23 been served. Defendant Cohen is the current State Controller having replaced Defendant Betty Yee, the former State Controller. 24 Defendant Gerald Anderson was the Chief of Human Resources for the State Controller’s Office at all times pertinent to this 25 case. While Plaintiff brought two claims against these three individuals in their official and individual capacities for 26 alleged violations of the Federal and State Constitutions, no 27 evidence has been presented that would permit any claims to go forward against them. Accordingly, these three individual 28 Defendants are dismissed without prejudice. 1 light most favorable to the non-moving party, indicates “that 2 there is no genuine dispute as to any material fact and the 3 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 4 P. 56(a). A genuine dispute of fact exists only if “there is 5 sufficient evidence favoring the nonmoving party for a jury to 6 return a verdict for that party.” Anderson v. Liberty Lobby, 7 Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails to 8 make this showing, “the moving party is entitled to a judgment as 9 a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 10 (1986). 11 B. Requests for Judicial Notice 12 Under Federal Rule of Evidence 201, a district court may 13 take judicial notice of a fact that is “not subject to reasonable 14 dispute because it can be accurately and readily determined from 15 sources whose accuracy cannot reasonably be questioned.” Fed. R. 16 Evid. 201(b)(2). A court “may take judicial notice of a record 17 of a state agency not subject to reasonable dispute.” City of 18 Sausalito v. O’Neill, 386 F.3d 1186, 1223 n.2 (9th Cir. 2004). 19 The parties each submit an unopposed request for judicial 20 notice (“RJN”) relating to matters of state record. Pl.’s RJN, 21 ECF No. 52; Defs.’ RJN, ECF No. 92. Because these documents are 22 proper for judicial notice, the Court grants the requests. 23 C. Motion to Exclude Expert Opinions 24 Defendants bring a Motion to Exclude Certain Expert Opinions 25 of Dr. Paul Finkelman and Dr. Matthew Schmalz. ECF No. 85. 26 Plaintiff argues that this motion was improperly filed, citing 27 the Pretrial Scheduling Order (ECF No. 39) and Local Rule 260. 28 See Opp’n to Mot. to Exclude at 1-3. The Court disagrees, as 1 nothing in either authority cited by Plaintiff prohibits 2 Defendants from bringing the present motion. As Defendants 3 observe, courts in this District routinely hear motions to 4 exclude expert testimony that are concurrently filed with motions 5 for summary judgment. See Reply for Mot. to Exclude at 2. As 6 such, Defendants’ motion is properly before the Court. 7 At the outset, the Court denies as moot the motion as to Dr. 8 Finkelman because the Court did not find his opinions to be 9 particularly helpful or relevant in reaching its decision 10 regarding the cross-motions for summary judgment. Dr. Schmalz’s 11 testimony on the other hand, is critical to Plaintiff’s Title VII 12 disparate impact claim and the motion to exclude portions of his 13 testimony needs to be resolved. 14 A motion to exclude expert testimony can be brought at the 15 summary judgment stage. See Lust v. Merrell Dow Pharmaceuticals, 16 Inc., 89 F.3d 594, 597 (1996). Courts apply the standard 17 outlined in Federal Rule of Evidence 702, which permits testimony 18 by experts qualified by “knowledge, skill, experience, training, 19 or education” to testify “in the form of an opinion or otherwise” 20 based on “scientific, technical, or other specialized knowledge” 21 if that knowledge will “help the trier of fact to understand the 22 evidence or to determine a fact in issue.” Fed. R. Evid. 702. 23 An expert’s testimony must be “based on sufficient facts or 24 data,” “the product of reliable principles and methods,” and the 25 application of “the principles and methods to the facts of the 26 case.” Id. 27 “Rule 702 embodies the twin concerns of reliability and 28 helpfulness.” Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1 1192 (9th Cir. 2007) (cleaned up). “Whether testimony is helpful 2 within the meaning of Rule 702 is in essence a relevancy 3 inquiry.” Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1184 (9th 4 Cir. 2002). “The test for reliability, however, is not the 5 correctness of the expert’s conclusions but the soundness of his 6 methodology.” Stillwell, 482 F.3d at 1192 (cleaned up). To be 7 reliable, the expert’s testimony must have “a reliable basis in 8 the knowledge and experience of the relevant discipline. The 9 district court must assess whether the reasoning or methodology 10 underlying the testimony is scientifically valid and properly can 11 be applied to the facts in issue, with the goal of ensuring that 12 the expert employs in the courtroom the same level of 13 intellectual rigor that characterizes the practice of an expert 14 in the relevant field.” United States v. Ruvalcaba-Garcia, 923 15 F.3d 1183, 1189 (9th Cir. 2019) (cleaned up). 16 The Court “not only has broad latitude in determining 17 whether an expert’s testimony is reliable, but also in deciding 18 how to determine the testimony’s reliability.” Hangarter v. 19 Provident Life & Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir. 20 2004) (citation omitted) (emphasis original). “After an expert 21 establishes admissibility to the judge’s satisfaction, challenges 22 that go to the weight of the evidence are within the province of 23 a fact finder, not a trial court judge. A district court should 24 not make credibility determinations that are reserved for the 25 jury.” Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 26 807, 814 (9th Cir. 2014). 27 In this case, Dr. Schmalz was retained by Plaintiff to 28 “provide expert analysis and possible testimony concerning the 1 beliefs and practices of Jehovah’s Witnesses concerning oaths.” 2 Musell Decl., Ex. C, Schmalz Decl. ¶ 2, ECF No. 98-1. Dr. 3 Schmalz is a Professor of Religious Studies at the College of the 4 Holy Cross. Id. ¶ 1. He has published multiple research papers 5 and essays on Jehovah’s Witnesses. Id. ¶¶ 16-18. When Dr. 6 Schmalz began teaching about this religious group, he “could not 7 find any course within any curriculum in the United States that 8 even briefly mentioned Jehovah’s Witnesses.” Id. ¶ 12. Dr. 9 Schmalz has served as “the academic expert commentator for 10 programs on television/digital platforms that have reported on 11 Jehovah’s Witnesses,” “provided expert commentary on Jehovah’s 12 Witnesses for national media outlets,” and is currently serving 13 as an expert consultant on pending legal cases “to provide 14 context on Watchtower beliefs and practices and the internal 15 dynamics shaping Jehovah’s Witness life.”2 Id. ¶¶ 19-20. 16 Defendants do not contest that Dr. Schmalz’s testimony is 17 helpful, as it goes to the core of the disparate impact claim. 18 Defendants also do not substantively argue that Dr. Schmalz is 19 unqualified. While they state that Dr. Schmalz has not published 20 research on Jehovah’s Witnesses since 1998, they do not explain 21 why this gap in time precludes him from being qualified to opine 22 on matters in this case. See Mot. to Exclude at 13. Instead, 23 Defendants’ principal argument is that portions of Dr. Schmalz’s 24 opinions are so unreliable, speculative or constitute improper 25 legal conclusions that they must be excluded. The Court 26 27 2Dr. Schmalz uses “Watchtower” to refer to the religious organization and “Jehovah’s Witnesses” to refer to the members of 28 the organization. Schmalz Decl. ¶ 5. The Court follows suit. 1 disagrees. 2 The Court finds that Dr. Schmalz’s opinions are “based on 3 sufficient facts or data” to survive Defendants’ motion to 4 exclude. See Fed. R. Evid. 702. The primary issue regarding 5 this testimony in support of Plaintiff’s Motion for Summary 6 Judgment is how much weight it should be given, not whether it is 7 admissible. As noted above, once admissibility has been 8 established to the judge’s satisfaction, challenges to the weight 9 of the evidence are decided by a jury, not the judge. 10 The Court denies Defendants’ motion to exclude portions of 11 Dr. Schmalz’s testimony in support of Plaintiff’s Motion for 12 Summary Judgment without prejudice to Defendants renewing their 13 motion should Dr. Schmalz seek to testify at trial. 14 D. Title VII 15 1. Applicability to State Oaths 16 Defendants first argue that Title VII does not apply to 17 state oaths. Defs.’ Mot. at 11-16. The Court disagrees. As 18 Plaintiff points out, the Ninth Circuit in this case implicitly 19 held that Title VII applies to state oaths because it held that 20 Plaintiff plausibly pleaded a Title VII claim as to the Oath. 21 See Pl.’s Mot. at 4-5. Moreover, the Ninth Circuit has elsewhere 22 applied Title VII to a state oath. In Lawson v. Washington, a 23 Jehovah’s Witness was hired as a cadet by the Washington State 24 Patrol. 296 F.3d 799, 802 (9th Cir. 2002). The plaintiff 25 resigned because he believed that saluting the flag and taking an 26 oath of allegiance to the State of Washington conflicted with his 27 religious beliefs. Id. at 802-803. Upon appeal of a summary 28 judgment order, the Ninth Circuit held that the plaintiff’s 1 religious beliefs conflicted with the Washington State Patrol’s 2 employment requirements. Id. at 804. By finding that the 3 plaintiff satisfied the first part of a failure to accommodate 4 claim brought under Title VII, the Ninth Circuit implicitly found 5 that Title VII applied to state oaths. See id. at 805. Given 6 this binding precedent, the Courts holds that Title VII applies 7 to state oaths. 8 2. Failure to Accommodate 9 The parties move for summary judgment as to Plaintiff’s 10 failure to accommodate claim under Title VII of the Civil Rights 11 Acts of 1964. FAC ¶¶ 62-73. This claim is analyzed under a two- 12 part framework. “First, the employee must establish a prima 13 facie case by proving that (1) he had a bona fide religious 14 belief, the practice of which conflicted with an employment duty; 15 (2) he informed his employer of the belief and conflict; and 16 (3) the employer threatened him with or subjected him to 17 discriminatory treatment, including discharge, because of his 18 inability to fulfill the job requirements.” Heller v. EBB Auto 19 Co., 8 F.3d 1433, 1438 (9th Cir. 1993). Second, “[o]nce an 20 employee establishes a prima facie case, the burden of proof then 21 shifts to the employer under the second part of the framework to 22 ‘establish that it initiated good faith efforts to accommodate 23 the employee’s religious practices’ or that it could not 24 reasonably accommodate the employee without undue hardship.” 25 Lawson, 296 F.3d at 804 (quoting Heller, 8 F.3d at 1438). 26 a. Conflict 27 In this case, the Ninth Circuit held that Plaintiff’s 28 “burden to allege a conflict with religious beliefs is fairly 1 minimal.” Bolden-Hardge, 63 F.4th at 1223. The court relied 2 upon the Supreme Court’s decision in Thomas v. Review Board of 3 Indiana Employment Security Division, where the Court held in the 4 context of free exercise and employment that when the plaintiff 5 draws a line that they cannot cross due to religious beliefs, “it 6 is not for us to say that the line he drew was an unreasonable 7 one.” 450 U.S. 707, 715 (1981). Rather, the Court held, “The 8 narrow function of a reviewing court in this context is to 9 determine whether there was an appropriate finding that 10 petitioner terminated his work because of an honest conviction 11 that such work was forbidden by his religion.” Id. at 716 12 (emphasis added). 13 Plaintiff maintains that there are four conflicts between 14 her religious beliefs and taking the Oath without accommodation: 15 (1) the Oath’s “true faith and allegiance” provision “presents an 16 actionable conflict with [Plaintiff’s] religious belief that her 17 allegiance is first and foremost to God”; (2) the Oath’s 18 requirement to “‘defend . . . against all enemies, foreign and 19 domestic’ presents a conflict with [Plaintiff’s] religious 20 beliefs against pledging to bear arms”; (3) the Oath conflicts 21 with Plaintiff’s “religious beliefs about maintaining political 22 neutrality”; and (4) “signing the unaccommodated Oath without 23 ‘any mental reservation,’ as it provides, would have further 24 violated [Plaintiff’s] religious beliefs where, based on the 25 foregoing concerns as well as her religious needs for a clear 26 conscience as a Jehovah’s Witness, she had reservations.” Pl.’s 27 Mot. at 15-16. 28 The Court finds that there is no genuine dispute that 1 Plaintiff’s religious beliefs conflict with the “true faith and 2 allegiance” provision. Plaintiff’s expert Dr. Schmalz opined 3 that “the requirement to ‘bear true faith and allegiance’ 4 presents a conflict with a typical Jehovah’s Witness’ most basic 5 loyalty to Jehovah God — a fundamental precept guiding Watchtower 6 belief and practice.” Schmalz Decl. ¶ 71. He therefore 7 concluded that “Plaintiff’s approach to the Oath is 8 characteristic of how all or substantially all Jehovah’s 9 Witnesses would approach the matter.” Id. ¶ 74. Plaintiff also 10 11testified she can “uphold” bearing allegiance to the federal 11 and state constitutions, but her “primary allegiance can’t be to 12 anything or anyone except for God.” Bolden-Hardge Dep. 167:12- 13 16; see also id. 169:6-10 (“I still need to make sure that my 14 primary allegiance is always to God.”). Moreover, as the Ninth 15 Circuit observed, “Jehovah’s Witnesses have repeatedly challenged 16 similar oath requirements as inconsistent with their religious 17 beliefs.” Id. at 1223 n.5. For example, a court in this 18 District held that the religious beliefs of a Jehovah’s Witness 19 conflicted with the Oath’s “true faith and allegiance” provision. 20 Bessard v. California Cmty. Colleges, 867 F. Supp. 1454, 1462 21 (E.D. Cal. 1994). This evidence and caselaw establish that 22 Plaintiff’s beliefs reflect an “honest conviction.” See Bolden- 23 Hardge, 63 F.4th at 1223. 24 In response, Defendants present two arguments. First, they 25 state that Plaintiff’s conflict was not an “honest conviction” 26 because she had worked in state government for six years without 27 renouncing her religion, including when she signed the Oath 28 without accommodation in 2011. Defs.’ Reply at 6. This evidence 1 does not demonstrate that Plaintiff’s conviction was dishonest. 2 Indeed, when Plaintiff was presented with the Oath in 2011, she 3 expressed concerns to an FTB employee. Bolden-Hardge Dep. 46:9- 4 48:18. Plaintiff was told “get the paperwork done” and sign the 5 Oath. Id. Plaintiff represents that because there were at least 6 20 other new employees in the room with her and everyone had to 7 complete many forms, she “just completed the paperwork.” Id. 8 Accordingly, the context around Plaintiff signing the Oath in 9 2011 underscores the honesty of her conviction that there are 10 conflicts between her religious views and the Oath. 11 Defendants’ second argument is that the federal oath and 12 other state oaths involve similar language to California’s oath, 13 such that workers “do not relinquish their religion, but they do 14 need to commit to follow the law.” Defs.’ Mot. at 17. 15 Defendants further contend that Plaintiff conceded the Oath did 16 not state “primary” allegiance, which Defendants suggest means 17 there is no conflict between her religious beliefs and the Oath. 18 Id. at 4. However, these arguments would require the Court to 19 consider whether it was reasonable for Plaintiff to believe that 20 there was a conflict between her religion and the Oath. The 21 Ninth Circuit, and the Supreme Court precedent upon which it 22 relied, clearly held that the Court cannot second-guess the 23 reasonableness of Plaintiff’s alleged conflict. See Bolden- 24 Hardge, 63 F.4th at 1223. Rather, the Court only assesses 25 whether Plaintiff has presented an “honest conviction,” which the 26 undisputed evidence establishes she has done. 27 Because it is undisputed that Plaintiff communicated this 28 conflict to Defendants, and that Defendants rescinded Plaintiff’s 1 job offer because she would not sign the Oath without 2 accommodation, Plaintiff has established a prima facie case of 3 failure to accommodate. See Heller, 8 F.3d at 1438; Bolden- 4 Hardge Dep. 76:24-78:21; Gleiberman Decl., Exs. 1E, 1F. As such, 5 the Court need not analyze Plaintiff’s other alleged conflicts. 6 See Bolden-Hardge, 63 F.4th at 1224. 7 b. Undue Hardship 8 The burden of proof shifts to Defendants to establish they 9 “could not reasonably accommodate the employee without undue 10 hardship.” See Lawson, 296 F.3d at 804. To establish an undue 11 hardship, “an employer must show that the burden of granting an 12 accommodation would result in substantial increased costs in 13 relation to the conduct of its particular business.” Groff v. 14 DeJoy, 600 U.S. 447, 470 (2023). Defendants do not present 15 sufficient evidence to allow a jury to find that the Proposed 16 Addendum constituted an undue hardship. 17 Defendants first argue that it would suffer a hardship “due 18 to deviation from the public’s lawful expectations” because the 19 public expects state officials to follow the law, which is an 20 expectation facilitated by the Oath. Defs.’ Mot. at 19-21. But 21 Plaintiff’s accommodation included her signing the Oath, and 22 nothing in the Proposed Addendum would undermine the public’s 23 expectation that she would follow the law. As such, Plaintiff 24 signing the Oath and attaching the Proposed Addendum would not be 25 a deviation from the public’s expectations. 26 Defendants next assert that they would suffer a hardship if 27 they allowed employees to write their own oath. Defs.’ Mot. at 28 22. Defendants rely on the California appellate opinion in Smith 1 v. County Engineer of San Diego County, where the court rejected 2 an employee’s attempt to add an addendum to the Oath that said, 3 “I take this oath, pledging my loyalty and allegiance to my 4 country, but declaring my supreme allegiance to the Lord Jesus 5 Christ Whom Almighty God has appointed ruler of Nations, and 6 expressing my dissent from the failure of the Constitution to 7 recognize Christ and to acknowledge the Divine institution of 8 civil government.” 266 Cal. App. 2d 645, 648 (1968). Smith does 9 not aid Defendants. First and foremost, the Smith court was not 10 considering whether federal law — much less Title VII — required 11 an accommodation, and thus Smith is inapposite from the present 12 action. However, even if Smith were on point, the addendum there 13 was categorically different from the Proposed Addendum here. The 14 Smith court rightfully held that the employee’s addendum was 15 “gratuitously injecting his religious beliefs into the 16 governmental process, the very subject into which the organic law 17 forbids inquiry by government.” See id. at 656. Plaintiff’s 18 Proposed Addendum, on the other hand, only seeks to clarify the 19 Oath’s meaning and is not “gratuitously injecting [Plaintiff’s] 20 religious beliefs into the governmental process.” See id. 21 Defendants also posit that the only reasonable accommodation 22 available for a religious belief is the ability to “affirm” an 23 oath rather than “swear” it. Defs.’ Mot. at 23. But Plaintiff’s 24 conflict is not with swearing an Oath; rather, her conflict lies 25 with the contents of the Oath itself. Moreover, Defendants’ 26 contention is unsupported by law. Because the Ninth Circuit in 27 this case already held that Plaintiff pleaded a plausible Title 28 VII claim, it implicitly held that federal law allows for 1 reasonable accommodations other than affirming the Oath. See 2 Bolden-Hardge, 63 F.4th at 1222 n.4. 3 Defendants’ final argument is that they would experience 4 hardship “due to the impact on other employees” because granting 5 Plaintiff’s requested accommodation would require them to violate 6 the law and, therefore, their oaths. Defs.’ Mot. at 21-22. To 7 support this position, Defendants submit the declaration of 8 Gerard Anderson, a Defendant in this action, because he is the 9 Chief of HR at SCO. See id. at 22. Anderson states that because 10 SCO determined it could not accommodate Plaintiff, he “felt that 11 granting Plaintiff’s request” would violate his “oath to uphold 12 the law.” Anderson Decl. ¶ 5, ECF No. 94. However, Defendants’ 13 contention is not grounded in the law. The California 14 Constitution only states that public officers and employees 15 “shall” take the Oath before entering office. Cal. Const. art. 16 XX, § 3. Defendants point to no legal authority — in the state 17 constitution or elsewhere — that SCO is prohibited from allowing 18 Plaintiff to attach the Proposed Addendum. 19 Defendants’ argument is further weakened by the practice of 20 other state agencies. Indeed, after SCO rescinded her job offer, 21 Plaintiff returned to the FTB, which granted the exact request in 22 this case by allowing her to attach the Proposed Addendum to the 23 Oath. Bolden-Hardge Decl. 57:1-58:9. The State Personnel Board 24 also allows employees to “attach a statement” to a signed Oath 25 stating that their “religious beliefs prohibit their bearing 26 arms.” Gleiberman Decl., Ex. 22, ECF No. 55-22. That other 27 state agencies allow employees to include addendums suggests that 28 such accommodation does not violate state law. 1 Even if the Proposed Addendum somehow violated state law, 2 the California Department of Human Resources — the agency tasked 3 with ensuring that other agencies administer the Oath to their 4 employees — does not have any policies or procedures to enforce 5 the Oath requirement. Id., Ex. 7, Wheeler Dep. 29:14-18, ECF No. 6 55-7; id. Ex. 21, ECF No. 55-21. The Ninth Circuit already held 7 that Defendants could not establish an undue hardship unless they 8 “provide evidence that [they] would in fact face liability for 9 accommodating” Plaintiff. See Bolden-Hardge, 63 F.4th at 1226. 10 Because the agency responsible for enforcing the Oath requirement 11 does not take any steps to ensure compliance by all State 12 agencies, Defendants have failed to provide proof they would face 13 liability for accommodating Plaintiff. See id. 14 Finally, even if the Court assumed that Defendants might 15 face liability for violating state law, they still would not meet 16 their undue hardship burden. As the Ninth Circuit in this case 17 explained, exempting employers from a federal accommodation 18 requirement “solely because the requested accommodation would 19 violate state law would essentially permit states to legislate 20 away any federal accommodation obligation, raising Supremacy 21 Clause concerns.” Bolden-Hardge, 63 F.4th at 1225 (emphasis 22 original). 23 Accordingly, the undisputed evidence shows that Defendants 24 would not have experienced an undue hardship if Plaintiff had 25 been allowed to attach the Proposed Addendum and sign the Oath, 26 as she requested. The Court grants Plaintiff’s motion and denies 27 Defendants’ cross-motion as to the Title VII failure to 28 accommodate claim. 1 3. Disparate Impact 2 Both parties move for summary judgment as to Plaintiff’s 3 disparate impact claim under Title VII. FAC ¶¶ 74-80. To 4 establish a prima facie case of disparate impact, a plaintiff 5 must: “(1) show a significant disparate impact on a protected 6 class or group; (2) identify the specific employment practices or 7 selection criteria at issue; and (3) show a causal relationship 8 between the challenged practices or criteria and the disparate 9 impact.” Hemmings, 285 F.3d at 1190 (citation omitted). If a 10 plaintiff establishes a prima facie case, then the burden shifts 11 to the employer to “demonstrate that the challenged practice is 12 job related for the position in question and consistent with 13 business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). 14 In this case at the motion to dismiss stage, the Ninth 15 Circuit held that Plaintiff did not need to provide statistics 16 demonstrating a disparate impact because her allegations — which 17 were accepted as true for purposes of the motion — included that 18 the Oath requirement impacted “all or substantially all” 19 Jehovah’s Witnesses seeking state employment. Bolden-Hardge, 63 20 F.4th at 1228. At the summary judgment stage, while Plaintiff 21 does not necessarily have to provide statistical evidence, she 22 does need to provide evidence that the disparate impact is 23 “obvious” such that it impacts “all or substantially all” 24 Jehovah’s Witnesses. See id. 25 Dr. Schmalz’s opinions are the only evidence before the 26 Court that concern how a typical Jehovah’s Witness would 27 interpret the Oath. He stated that the requirement to sign an 28 oath with the “true faith and allegiance” provision “would 1 violate the sincerely held religious beliefs of Jehovah’s Witness 2 as a group.” Schmalz Decl. ¶ 34. Dr. Schmalz furthered that 3 “the requirement to ‘bear true faith and allegiance’ presents a 4 conflict with a typical Jehovah’s Witness’ most basic loyalty to 5 Jehovah God — a fundamental precept guiding Watchtower belief and 6 practice.” Id. ¶ 71. As such, he concluded that because 7 “Plaintiff’s approach to the Oath is characteristic of how all or 8 substantially all Jehovah’s Witnesses would approach the matter,” 9 “the categorical refusal by Defendants to provide accommodations 10 in the context of the Oath has the consequence of excluding 11 Jehovah’s Witnesses as a group from public employment with the 12 State Controller’s Office.” Id. ¶¶ 74-76. Dr. Schmalz added 13 that allowing a Jehovah’s Witness to sign the Oath with the 14 Proposed Addendum “would not conflict with the sincere religious 15 beliefs of . . . all or substantially all Jehovah’s Witnesses as 16 a group.” Id. ¶ 79. This evidence arguably supports Plaintiff’s 17 argument that her conflict applies to “all or substantially all” 18 Jehovah’s Witnesses such that a policy of administering an 19 unaccommodated Oath has an “obvious” disparate impact. See 20 Bolden-Hardge, 63 F.4th at 1228. 21 As discussed above, Defendants challenge Dr. Schmalz’s 22 opinions and conclusions as inadmissible. While the Cout denied 23 Defendants’ motion to strike portions of this evidence, it found 24 that there is a genuine issue as to how much weight it should be 25 given. Any challenge that goes to the weight of evidence is 26 within the province of the fact finder, not the trial judge. 27 This Court may not make credibility determinations reserved for 28 the jury. Pyramid Techs, 752 F.3d 807, 814. There is a genuine 1 issue of material fact as to whether Plaintiff can make a prima 2 facie showing of disparate impact under Title VII. Accordingly, 3 the Court denies both parties’ motions for summary judgment on 4 this claim. 5 E. Plaintiff’s Section 1983 Claim is Untimely 6 The parties move for summary judgment as to Plaintiff’s 7 Section 1983 claim for violation of the First Amendment. FAC 8 ¶¶ 89-100. Defendants argue that Plaintiff is time-barred from 9 bringing a Section 1983 claim. Defs.’ Mot. at 30. The Ninth 10 Circuit held, “Claims brought under 42 U.S.C. § 1983 borrow the 11 forum state’s statute of limitations for personal injury actions, 12 as well as the state’s tolling rules . . . California’s two-year 13 limitations period for personal injury actions . . . applies to 14 [plaintiffs’] § 1983 claims.” Holt v. Cnty. of Orange, 91 F.4th 15 1013, 1018 (9th Cir. 2024) (cleaned up). Plaintiff learned on 16 August 4, 2017, that her job offer from SCO had been rescinded. 17 Bolden-Hardge Depo. 104:4-17. Accordingly, Plaintiff needed to 18 commence action by August 4, 2019, to comply with the two-year 19 limitation period. However, Plaintiff did not file suit until 20 October 19, 2020. See Complaint, ECF No. 1. 21 Plaintiff does not contest that her claim is subject to a 22 two-year limitation period or that she failed to timely commence 23 action. She argues, however, that the claim was tolled because, 24 on January 23, 2018, she initiated an Equal Employment 25 Opportunity Commission (“EEOC”) proceeding by filing a complaint 26 with the California Department of Fair Employment and Housing. 27 See Pl.’s Opp’n at 19; Gleiberman Decl., Ex. 33, ECF No. 51-3. 28 Plaintiff ignores significant caselaw that all but 1 forecloses her argument. The Supreme Court held that the filing 2 of an EEOC complaint does not toll the running of the statute of 3 limitations for a Section 1981 claim, which is a similar cause of 4 action to a Section 1983 claim. Johnson v. Railway Express 5 Agency, 421 U.S. 454, 466 (1974). The Court elsewhere held that 6 all causes of action under the Civil Rights Acts “exist 7 independent of any other legal or administrative relief that may 8 be available as a matter of federal or state law.” Burnett v. 9 Grattan, 468 U.S. 42, 50 (1984). Relying on this precedent, the 10 Ninth Circuit held that the statute of limitations for a Section 11 1981 claim was not tolled during the pendency of a California 12 administrative claim. London v. Coopers & Lybrand, 644 F.2d 811, 13 815 (9th Cir. 1981), overruled on other grounds by Lacey v. 14 Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012). 15 District courts in this Circuit have applied this binding 16 precedent to Section 1983 claims. For example, one district 17 court held, “There is thus no reason that the . . . statute of 18 limitations governing plaintiff’s § 1983 claim should be tolled 19 while his EEOC proceeding was pending.” Reese v. City of 20 Emeryville Fire Dep’t, 746 F. Supp. 987, 988 (N.D. Cal. 1990). 21 The Reese court explained, “To hold otherwise would grant 22 plaintiff the right to allege new causes of action continually, 23 each time asserting the pendency of the previous litigation as 24 tolling any limitations period applicable to the newly alleged 25 claim. Such a result would frustrate policies behind statutes of 26 limitations, which are intended both to encourage plaintiffs to 27 pursue all available legal remedies in a timely manner and to 28 ensure that defendants need not face the uncertainty of 1 indefinite liability.” Id. Other district courts have held that 2 an EEOC proceeding does not toll the limitation period for a 3 Section 1983 claim. See Sutton v. City & Cnty. of San Francisco, 4 No. C 93-1120 BAC, 1993 WL 451506, at *2 (N.D. Cal. Oct. 28, 5 1993) (granting summary judgment to the defendant because Section 6 1983 claim was untimely, as it was not tolled during the pendency 7 of the plaintiff’s EEOC proceeding); Vorgias v. State Bar of 8 California, No. C 05-5039 JF PVT, 2007 WL 295547, at *2 (N.D. 9 Cal. Jan. 30, 2007) (holding that an EEOC complaint did not toll 10 the limitation period for a Section 1983 claim). 11 The Court agrees that the statute of limitations for a 12 Section 1983 claim runs during the pendency of an EEOC 13 proceeding. Because Plaintiff has no other argument for tolling 14 and concedes that her claim is otherwise untimely, the Court 15 grants Defendants’ motion and denies Plaintiff’s motion as to the 16 Section 1983 claim. 17 F. The Court Must Dismiss the Remaining Claims 18 1. Fair Employment and Housing Act 19 The parties move for summary judgment as to Plaintiff’s 20 claim for violation of California’s Fair Employment and Housing 21 Act (“FEHA”). Defendants correctly argue that this claim is 22 barred by the Eleventh Amendment. Defs.’ Mot. at 28. The 23 Supreme Court held, “a claim that state officials violated state 24 law in carrying out their official responsibilities is a claim 25 against the State that is protected by the Eleventh Amendment.” 26 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 27 (1984) (citation omitted). The Court furthered that “this 28 principle applies as well to state-law claims brought into 1 federal court under pendent jurisdiction.” Id. While an 2 individual can sue a state employee for a FEHA violation in state 3 court, the Ninth Circuit held that “a statute consenting to suit 4 in state court does not constitute consent to suit in federal 5 court.” Fordyce v. City of Seattle, 55 F.3d 436, 441 (9th Cir. 6 1995) (citation omitted). Accordingly, the Ninth Circuit held, 7 “California has not waived its immunity to FEHA actions in 8 federal court.” Freeman v. Oakland Unified Sch. Dist., 179 F.3d 9 846, 847 (9th Cir. 1999); see also Mack v. California Dep’t of 10 Corr. & Rehab., 790 F. App’x 846, 848 (9th Cir. 2019) (holding 11 that the district court properly dismissed a FEHA claim against a 12 state agency because the claim was barred by sovereign immunity). 13 Plaintiff points out that Defendants did not raise this 14 issue at the motion to dismiss stage. Pl.’s Opp’n at 7 n.4. 15 However, Defendants were not required to raise this issue in a 16 motion to dismiss. See Doe v. Regents of the Univ. of 17 California, 891 F.3d 1147, 1152-53 (9th Cir. 2018) (holding that 18 defendant did not waive immunity by not raising the argument in a 19 motion to dismiss). Moreover, because Defendants asserted this 20 affirmative defense, the argument was not waived. See Answer at 21 24, ECF No. 34. 22 Plaintiff also contends that the Ninth Circuit allowed her 23 FEHA claim to proceed. Pl.’s Opp’n at 7 n.4. However, because 24 this issue was not previously raised, the Ninth Circuit did not 25 address it. The Ninth Circuit held that Plaintiff “can seek 26 retrospective damages from the Controller’s Office under FEHA 27 because state employers are likewise subject to suits for damages 28 under that state law.” Bolden-Hardge, 63 F.4th at 1221 (citing 1 DeJung v. Superior Ct., 169 Cal. App. 4th 533 (2008)). The Ninth 2 Circuit did not, however, address whether this claim was barred 3 by the Eleventh Amendment. Moreover, DeJung — the California 4 appellate case that the Ninth Circuit cited — only stands for the 5 proposition that public employers are liable for violations of 6 FEHA, and it does not state that California has waived its 7 immunity against FEHA actions in federal court. See 169 Cal. 8 App. 4th at 545. 9 Accordingly, the Court does not have jurisdiction over the 10 FEHA claim. The Court addresses below the proper disposition of 11 this claim. See infra Opinion Part F.3. 12 2. California Constitution 13 Defendants, but not Plaintiff, move for summary judgment as 14 to Plaintiff’s claim for violation of the California 15 Constitution. As Defendants observe, see Defs.’ Mot. at 35, this 16 claim is also barred because “a claim that state officials 17 violated state law in carrying out their official 18 responsibilities is a claim against the State that is protected 19 by the Eleventh Amendment.” See Pennhurst State Sch., 465 U.S. 20 at 121. Relying on Pennhurst State School, the Ninth Circuit 21 held that a federal court deciding state issues “would offend 22 federalism and does not further the interests of federal law.” 23 Ulaleo v. Paty, 902 F.2d 1395, 1400 (9th Cir. 1990). 24 Accordingly, the Ninth Circuit affirmed the district court’s 25 dismissal of “plaintiffs’ pendent claims based on solely state 26 law and the state constitution.” Id. 27 Plaintiff does not address this specific argument. See 28 Pl.’s Opp’n at 20, n.15. By failing to respond to Defendants’ 1 argument, Plaintiff concedes that this claim is barred. See 2 Mariscal v. Graco, Inc., 52 F. Supp. 3d 973, 984 (N.D. Cal. 2014) 3 (granting summary judgment because the plaintiff conceded the 4 relevant claim by failing to address the defendant’s arguments); 5 M.J.L.H. v. City of Pasadena, No. CV 18-3249-JFW(SSx), 2019 WL 6 2249545, at *4 n.9 (C.D. Cal. May 24, 2019) (same). Accordingly, 7 the Court does not have jurisdiction over the California 8 Constitution claim. 9 3. Dismissal is Mandatory as to Both Claims 10 Defendants request summary judgment as to the FEHA and 11 California Constitution claims. Defs.’ Mot. at 28, 35. However, 12 because the Court lacks jurisdiction, it must dismiss the claims 13 rather than grant summary judgment. In Freeman v. Oakland 14 Unified School District, the district court granted the 15 defendant’s motion for summary judgment because the FEHA claim 16 was barred by the Eleventh Amendment. No. C 96-1539 FMS, 1998 WL 17 310758, at *4 (N.D. Cal. June 8, 1998). Upon appeal, though the 18 Ninth Circuit agreed that the claim was barred, it nonetheless 19 ordered “the district court to modify its decision to specify 20 that [the plaintiff’s] FEHA claim is ‘dismissed without 21 prejudice.’” Freeman, 179 F.3d at 847. The court explained that 22 because the “Eleventh Amendment is a limit on federal courts’ 23 jurisdiction,” a claim barred by the Eleventh Amendment must be 24 dismissed “without prejudice to it being re-filed in a court of 25 competent jurisdiction.” Id. 26 /// 27 /// 28 /// enn nnn enn nn nn nn SO I EE 1 Accordingly, as to the FEHA and California Constitution 2 claims, the Court dismisses them without prejudice. As such, the 3 Court denies as moot the parties’ cross-motions as to these 4 claims. 5 TILT. ORDER 6 For the reasons set forth above, Defendants’ Motion to 7 Exclude is DENIED WITHOUT PREJUDICE. The Court also GRANTS IN 8 PART and DENIES IN PART Plaintiff’s and Defendants’ cross-motions 9 for summary judgment. Specifically, the Court GRANTS Plaintiff’s 10 motion and DENIES Defendants’ motion as to the Title VII claim 11 for failure to accommodate. The Court DENIES the parties cross- 12 motions as to the Title VII claim for disparate impact. The 13 Court GRANTS Defendants’ motion and DENIES Plaintiff’s motion as 14 to the Section 1983 claim. The claims brought under the 15 California Constitution and the Fair Employment and Housing Act 16 are DISMISSED WITHOUT PREJUDICE, and thus the parties’ cross- 17 | motions are DENIED AS MOOT as to these claims. 18 IT IS SO ORDERED. 19 Dated: August 29, 2025 20 Cfo JOHN A. MENDEZ 22 SENIOR UNITED*STATES DISTRICT JUDGE 23 24 25 26 27 28 25