NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 29 2024

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

LISA LEAKE; KRISTEN GRACE; JOSEPH No. 23-15320

HEYSER; CHRISTOPHER STEIN; LESLIE

D.C. No. 4:22-cv-00436-RM ZEPEDA, each individually and on behalf of all other similarly situated,

MEMORANDUM*

Plaintiffs-Appellants, v.

RAYTHEON TECHNOLOGIES

CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Rosemary Marquez, District Judge, Presiding Submitted November 7, 2023** Phoenix, Arizona

Before: HAWKINS and COLLINS, Circuit Judges, and SEEBORG,*** District Judge.

Plaintiffs, five former employees of Defendant Raytheon Technologies

Corporation (“Raytheon”), appeal the district court’s dismissal of their complaint

challenging, under Title VII of the Civil Rights Act of 1964, Raytheon’s policies

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). *** The Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. concerning employee vaccination against Covid. Plaintiffs allege that, while they

were each granted religious or medical exemptions from Raytheon’s requirement

to take the Covid vaccine,1 the conditions that Raytheon imposed on these

exemptions, and Raytheon’s overall enforcement of its policies, resulted in

(1) discrimination based on religion, (2) a hostile work environment based on

religion, and (3) unlawful retaliation. The district court dismissed the complaint

for failure to state a claim, see FED. R. CIV. P. 12(b)(6), and Plaintiffs timely

appeal. We have jurisdiction under 28 U.S.C. § 1291, and we review the district

court’s dismissal de novo. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th

Cir. 2004). We affirm.

1. In challenging the dismissal of their religious discrimination claim,

Plaintiffs rely solely on the contention that they pleaded sufficient facts to establish

a prima facie case of disparate treatment under the framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To satisfy that burden,

Plaintiffs had to plead facts showing that (1) they “belong[] to a protected class”;

1 Plaintiffs’ opening brief on appeal contends that Plaintiffs Lisa Leake and Joseph Heyser did not in fact receive an exemption, but the complaint specifically alleges that the opposite is true. As to Leake, the complaint alleges that her “religious accommodation was approved,” subject to conditions. As to Heyser, the complaint notes that he was subject to Raytheon’s “blanket ‘accommodation’ for those with medical or religious exemptions,” which required him to wear a mask and be tested weekly, and that, when the masking requirement was lifted only for vaccinated employees, he was then “identifiable as a person who had a medical or religious objection.”

2 (2) they were “qualified for the[ir] position[s]”; (3) they were “subject to an

adverse employment action”; and (4) “similarly situated individuals outside [their]

protected class were treated more favorably.” Leong v. Potter, 347 F.3d 1117,

1124 (9th Cir. 2003) (citing McDonnell Douglas, 411 U.S. at 802). Plaintiffs’

complaint wholly fails to plead the fourth element. To satisfy this element, the

complaint had to plead facts showing that there were non-religious employees

who, like Plaintiffs, declined to comply with the vaccination requirement or with

the conditions attached to exemptions but who were not subject to the adverse

consequences that Plaintiffs allege. The complaint does not allege that there are

any such persons; indeed, it affirmatively alleges that Raytheon imposed a

“blanket” accommodations policy that treated the conditions for any exemptions

that were granted, whether medical or religious, as “non-negotiable.”

2. Plaintiffs’ hostile environment claim fails for similar reasons. “A hostile

work environment is shown by ‘the existence of severe or pervasive and

unwelcome verbal or physical harassment because of plaintiff’s membership in a

protected class.’” Washington v. Garrett, 10 F.3d 1421, 1431 n.14 (9th Cir. 1993)

(citation omitted). Plaintiffs have pleaded no facts showing that the actions that

they allege were harassing—namely, “constant reminders” via “emails, company

shout-outs,” and “signs” encouraging “vaccination compliance”; emails seeking to

enforce the vaccination policy; and Raytheon’s later requiring only unvaccinated

3 employees to mask—were imposed on them “because of [their] membership in a

protected class,” here, religion. The complaint’s own allegations establish that

these vaccine-policy communications and measures were imposed on all

employees, not just religious ones, and nothing in the complaint comes close to

supporting a “plausible” inference that the alleged pro-vaccine messaging

campaign was undertaken even in part based on religion. See Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).

3. To state a claim for retaliation, Plaintiffs had to plead sufficient facts to

establish that “(1) [they] engaged in activity protected under Title VII, (2) the

employer subjected [them] to an adverse employment decision, and (3) there was a

causal link between the protected activity and the employer’s action.” Passantino

v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000).

The causal link required for a retaliation claim under Title VII is that the plaintiff’s

“protected activity was a but-for cause of the alleged adverse action by the

employer.” University of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362

(2013). Plaintiffs failed to plead any facts plausibly establishing but-for causation

between the alleged adverse actions and Plaintiffs’ alleged protected activity of

asserting religious objections to Raytheon’s “vaccine directives.” As the district

court recognized, the complaints’ allegations confirm that the “but-for cause of

Plaintiffs’ termination” was not their religious objections to the vaccine, but rather

4 “Plaintiffs’ refusal to comply” with the “conditions” that Raytheon neutrally

imposed on all non-vaccinated employees. Moreover, the complaint does not

plead any facts suggesting that Plaintiffs’ objections to masking or testing were

themselves religious-based.

4. Plaintiffs attempt to raise certain constitutional claims for the first time

on appeal, but we decline to consider them. See Community House, Inc. v. City of

Boise, 490 F.3d 1041, 1053–54 (9th Cir. 2007).

AFFIRMED.

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