Abbott et al v. Austal USA, LLC

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DENNIS ABBOTT, et al., )
Plaintiffs, )
)
v. ) Civil Action No. 1:22-cv-00267-KD-C
)
AUSTAL USA, LLC, )
Defendant. )
ORDER
This action is before the Court on the Plaintiffs’ Motion for Partial Summary Judgment, (Doc.
240); the Response, (Doc. 251), filed by Defendant Austal USA, LLC (“Austal”); and the
Plaintiffs’ Reply. (Doc. 256). This action involves the claims of numerous Plaintiffs under a variety
of theories regarding Austal’s vaccine mandate during the COVID-19 pandemic. Upon
consideration, and for the reasons below, the motion is DENIED.
I. Findings of Fact1
A. Austal USA, LLC and Plaintiffs
Austal is a federal contractor as it contracts with the United States Navy to build ships. During
the relevant time period, Rusty Murdaugh (“Murdaugh”) was Austal’s president; Mike Bell
(“Bell”) worked as Vice President of Operations; Sandra Koblas (“Koblas”) was Vice President
of Human Resources; Samuel Cordts (“Cordts”) was Director of Health and Safety; Rodney
Patrick was the Employee Relations Manager; Ryan Lee (“Lee”) was Senior Manager of Training
and Organizational Development; Bridget Jewett was a Human Resources Business Partner; and
Jeanette Whatley was an Occupational Nurse Coordinator.
1 The “facts,” as accepted at the summary judgment stage, “may not be the actual facts of the case.”
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).
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While at Austal, Plaintiffs held a variety of job positions including fitter, welder, electrician,
supervisor, and others. In large part, these positions required Plaintiffs to regularly work with their
team or crew. Also, Plaintiffs regularly attended start of shift meetings with their crews.
B. COVID-19 Pandemic and Vaccine Mandates
The World Health Organization (“WHO”) declared COVID-19 as a pandemic on March 11,
2020. National Library of Medicine, https://pmc.ncbi.nlm.nih.gov/articles/PMC7569573/ (last
visited Dec. 2, 2024). On September 9, 2021, President Joe Biden signed Executive Order 14042
(“EO 14042”). See Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 FR
50985 (Sep. 9, 2021). EO 14042 established a requirement that all federal contractor employees
be vaccinated. Id. EO 14042 directed the Federal Workforce Task Force to develop workplace
COVID-19 safety standards with which federal contractors governed by the EO would have to
comply. Id. In turn, the Task Force issued guidance on September 24, 2021, requiring the
contractors to mandate that their employees be fully vaccinated (meaning, two weeks after
receiving the Johnson & Johnson/Janssen vaccine or the second dose of the Pfizer or Moderna
vaccine) by December 8, 2021, unless granted an exemption. New Guidance on COVID-19
Workplace Safety for Federal Contractors, WHITE HOUSE
https://www.whitehouse.gov/omb/briefing-room/2021/09/24/new-guidance-on-covid-19-
workplace-safety-for-federal-contractors/ (last visited Dec. 3, 2024).
On or about November 5, 2021, the Occupational Safety and Health Administration (“OSHA”)
issued an Emergency Temporary Standard (“ETS”) that would require employers of 100 or more
employees to perform periodic testing of unvaccinated employees. See COVID-19 Vaccination
and Testing; Emergency Temporary Standard, 86 FR 61402 (Nov. 5, 2021). That ETS was
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ultimately withdrawn by OSHA in January 2022. See COVID-19 Vaccination and Testing;
Emergency Temporary Standard, 87 FR 3928-01 (Jan. 26, 2022).
On October 1, 2021, Austal issued a communication to its workforce regarding the federal
mandate. In that communication, employees were informed that Austal was subject to the federal
mandate and that all employees were required to receive and report receipt of the Johnson &
Johnson/Janssen vaccine or their first shot of the Pfizer or Moderna vaccine by October 27 and the
second doses of the Pfizer or Moderna vaccine by November 24. In that same communication,
Austal informed its employees that any employee who had a disability, who was pregnant, who
was a nursing mother, who had a qualifying medical condition contraindicating vaccination, or
who objected to being vaccinated on the basis of a sincerely-held religious belief/practice could
request an exemption from the vaccination.
C. Accommodation/Exemption Process for Religious Exemptions
Human Resources provided each employee requesting an exemption with a request form. As
part of the evaluation process, Human Resources met with each employee’s
management/supervisory team to discuss the employee’s job interactions with others (such as co-
workers, managers, and customers). The information gathered was used to determine what, if any,
safety protocols the employee would have to follow if his/her request for exemption was granted.
D. Austal’s Attempts to Accommodate
In total, Austal received almost 160 religious exemption requests. Human Resources
interviewed the management/supervisory teams of all employees but determined that no employee
worked in isolation and that each employee had regular interactions with other employees.
Lee sought health and regulatory guidance on how to preserve employee safety and health if
they were not vaccinated. Lee consulted with medical and health personnel both at the University
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of South Alabama and the Mobile County Health Department. Through those discussions, and in
consideration of the anticipated OSHA ETS, Austal determined that unvaccinated employees
would be required to submit to bi-weekly onsite testing provided by Austal, as well as continued
masking and social distancing where possible.
In an effort to evaluate the feasibility of a bi-weekly onsite testing program, Austal assessed
the cost, mechanics, and logistics of how the program would work for the nearly 160 employees
requesting religious exemptions—while bearing in mind that Austal could not require employees
to pay for their own tests. Lee assembled a spreadsheet that took into account the cost of the test
itself, the fact that the employees would be on-the-clock for the approximate thirty minutes of
testing, the costs of administrative labor in supervising and tracking testing, and the projected costs
of false positives that would mandate added testing utilizing a medical services vendor and
employee time off work. Lee and Austal took into account that administration of the testing
program would require, among other things, additional reporting to check the
shift/status/attendance of the unvaccinated employee, communications with the employee’s
supervisor, managing potential non-compliance with testing requirements, preparing tests and
testing sites, witnessing tests, and logging and tracking test results.
Based on the calculations, Austal was facing an approximate cost in excess of $1,000,000.00
per year to perform bi-weekly testing, aside from the administrative costs. In consideration of this
estimate, the potential administrative issues, and the obligation to protect the health of its
employees, Austal determined that a bi-weekly testing program would pose a significant undue
hardship on the company and that there was no other feasible method to accommodate those
seeking religious exemptions from the vaccine requirement. Austal looked at what it could
accommodate and granted some medical exemptions but denied all religious exemptions. Austal
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did not meet with any of the employees requesting a religious exemption before denying their
requests.
II. Standard of Review
Summary judgment shall be granted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A fact is “material” if it “might affect the outcome” of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party,” a genuine dispute of material fact exists. Id.
The party moving for summary judgment “bears the initial burden of demonstrating the
absence of a genuine dispute of material fact.” FindWhat Inv’r Grp. v. FindWhat.com, 658 F.3d
1282, 1307 (11th Cir. 2011). The movant meets this burden by identifying affirmative evidence
(pleadings, depositions, answers to interrogatories, admissions on file, etc.) to support its claim
that no genuine dispute of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Fed. R. Civ. P. 56(c)(1)(A). If the nonmovant bears the burden of persuasion at trial, the movant
may also make a prima facie showing of summary judgment by demonstrating that the
nonmovant’s evidence is insufficient to establish an essential element of its claim. Grange Mut.
Cas. Co. v. Slaughter, 958 F.3d 1050, 1057 (11th Cir. 2020); Fed. R. Civ. P. 56(c)(1)(B).
If the movant meets its burden under Rule 56(c), summary judgment will be granted unless the
nonmovant offers some competent evidence that could be presented at trial showing that there is a
genuine dispute of material fact. Celotex, 477 U.S. at 324. If the movant met its burden by pointing
“to specific portions of the record . . . to demonstrate that the nonmoving party cannot meet its
burden of proof at trial,” the nonmovant must “go beyond the pleadings” to designate specific facts
showing a genuine issue for trial. Id.; Fed. R. Civ. P. 56(e).
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When assessing a summary judgment motion, the court’s function is not to make “credibility
determinations” and “weigh the evidence.” Anderson, 477 U.S. at 248. Instead, the court must
“view all of the evidence in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party’s favor.” FindWhat, 658 F.3d at 1307. Thus, summary judgment
is only proper when a movant shows that no reasonable jury could find for the nonmovant—even
when the evidence and inferences are drawn in the nonmovant’s favor.
III. Analysis
Plaintiffs move for summary judgment on their Title VII claims against Austal. Plaintiffs argue
that Austal, as the defendant, bears the burden of proof on its affirmative defense of “undue
hardship.” For the following reasons, Plaintiffs’ motion for summary judgment as to their Title
VII claims is denied.
Plaintiffs argue that Austal’s process for denying the religious accommodation requests is so
legally defective as to entitled Plaintiffs to judgment as a matter of law. Plaintiffs’ reasoning is
that “Title VII requires some affirmative action by the employer to help resolve the employee’s
religious conflict.” (Doc. 240 at 4). In support, Plaintiffs cite several cases explaining ways in
which an employer can reasonably accommodate employees. See E.E.O.C. v. Texas Hydraulics,
Inc., 583 F. Supp. 2d 904, 911 (E.D. Tenn. 2008) (explaining that the employer could have
reasonably accommodated the employee by making other employees aware of the religious
conflict and asking if they would be willing to swap shifts); E.E.O.C. v. Robert Bosch Corp., 169
F. App’x 942, 944–45 (6th Cir. 2006) (“In addition to allowing voluntary shift swaps, some
employers have curried favor with affirmative actions like holding meetings with the employee,
attempting to find the employee another job, supplying the employee with a roster sheet containing
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the schedules of co-workers, and allowing the employee to advertise his need for shift swaps during
daily roll calls and on the employer’s bulletin board.”).
Plaintiffs also cite caselaw to support the proposition that the employer is obligated to work
with the employee in identifying possible accommodations. See Moates v. Hamilton Cnty., 976 F.
Supp. 2d 984, 993 (E.D. Tenn. 2013) (explaining that the ADA “does require the employer . . . ‘to
initiate an informal, interactive process with the qualified individual with a disability in need of
the accommodation.’” (quoting 29 C.F.R. § 160.2(o)(3)); E.E.O.C. v. Aldi, Inc., No. CIV.A. 06-
01210, 2008 WL 859249, at *12 (W.D. Pa. Mar. 28, 2008) (“Title VII’s reasonable
accommodation provisions contemplate an interactive process, with cooperation between the
employer and the employee, but which must be initiated by the employer.” (quoting Kenner v.
Domtar Industries, Inc., No. 04-CV-4021, 2006 WL 662466 at *1 (W.D. Ark. March 13, 2006));
Nichols v. Illinois Dep’t of Transportation, 152 F. Supp. 3d 1106, 1124 (N.D. Ill. 2016) (explaining
that a dispute issue of fact existed over the question of undue hardship in part because the employer
never engaged in any dialogue with the employee about his request for accommodation).
None of the cases cited by Plaintiffs resulted in the granting of summary judgment in favor of
the plaintiff on a Title VII claim. Moreover, in a footnote, Plaintiffs concede that the failure to
confer with the employee is not an independent violation of Title VII. (Doc. 240 at 7 n.2). Indeed,
nowhere in Groff v. DeJoy does the Court use the phrase “interactive process.” 600 U.S. 447
(2023). And Plaintiffs have not cited a single case from the Eleventh Circuit which states that an
“interactive process” is necessary before an employer can prove an undue hardship. The
“interactive process” requirement comes from the language of the ADA, not Title VII. Even in the
ADA context, “an employer’s failure to engage in the interactive process alone is not an
independent basis for liability . . . .” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th
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Cir. 2014). Therefore, the fact that Austal did not communicate with Plaintiffs before it denied
their religious accommodation requests does not preclude Austal from proving it faced an undue
hardship.
As detailed in Austal’s response, Austal assessed whether a reasonable accommodation was
possible for the religious exemption requests. Austal’s Human Resources met with each
employee’s management/supervisory team to discuss the employee’s job interactions with others
(such as co-workers, managers, and customers). Austal relied on objective data and guidance from
the University of South Alabama and the Mobile County Department of Health to determine that
maintaining a safe workplace with nearly 160 religious objectors to the vaccination would require
biweekly testing. Austal researched the estimated cost of reasonably accommodating the religious
exemption requests. Therefore, Plaintiffs’ motion for partial summary judgment on the reasonable
accommodation claims is denied.
IV. Conclusion
Plaintiffs appear to argue that Austal should have considered accommodations other than bi-
weekly testing. However, Plaintiffs failed to even suggest what other accommodations should have
been considered or were possible. Plaintiffs’ summary judgment is denied.
DONE and ORDERED this 20th day of December 2024.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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