Smith v. University of Texas Medical Branch

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JESSICA SMITH,
Plaintiff.
V.
UNIVERSITY OF TEXAS MEDICAL
BRANCH,
Defendant.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 3:24-cv-00336
AMENDED MEMORANDUM AND RECOMMENDATION1
In this employment discrimination case, Plaintiff Jessica Smith alleges that
The University of Texas Medical Branch at Galveston (“UTMB”) discriminated
against her on the basis of her religion when it failed to accommodate her religious
beliefs. UTMB has filed a motion to dismiss. See Dkt. 15. Smith, representing
herself, responded to the motion and requested an opportunity to supplement her
complaint to add a promissory estoppel claim. 2 See Dkt. 17. For the reasons
discussed below, I recommend that the motion to dismiss be denied.
BACKGROUND
Smith worked as a telephone triage nurse at UTMB for approximately eight
years. In early 2022, UTMB issued a policy requiring all its employees and
1 On November 13, 2025, I recommended that the court dismiss Smith’s lawsuit based on
Smith’s failure to complete and return UTMB’s COVID-19 vaccine exemption form, which
deprived UTMB of notice of Smith’s bona fide religious belief. See Dkt. 26 at 7. But Smith
provided notice of her bona fide religious belief to UTMB through a rebuttal letter that
UTMB received prior to terminating Smith’s employment. Thus, she has pleaded facts
sufficient to infer that UTMB was on notice of her bona fide religious belief. Accordingly,
I withdraw my November 13 memorandum opinion, order, and recommendation and
offer this recommendation instead. Because I offer this recommendation instead, I also
recommend that Smith’s motion for reconsideration be denied as moot. See Dkt. 28.
2 If Smith wants to amend her complaint to add a promissory estoppel claim, she may do
so within 14 days after this memorandum and recommendation is adopted. I express no
opinion on the legal sufficiency of Smith’s promissory estoppel claim.
United States District Court
Southern District of Texas
ENTERED
December 18, 2025
Nathan Ochsner, Clerk
Case 3:24-cv-00336 Document 29 Filed 12/18/25 in TXSD Page 1 of 11

2
contractors to be fully vaccinated against the COVID-19 virus or face termination.
UTMB advised its employees and contractors that they could request an exemption
from the vaccine mandate based on a “recognized medical condition(s) for which
vaccines are contraindicated or religious beliefs, observances, or practices.” Dkt. 1-
1 at 7. An employee seeking an exemption from the COVID-19 vaccination policy
for religious reasons was required to complete a two-page form. That form asked
the employee to “identify the particular, sincerely held religious belief, observance
or practice that you would violate or forgo in receiving a COVID-19 vaccine.” Id. at
5. The form also asked employees to “[d]escribe how receiving a COVID-19 vaccine
conflicts with your sincerely held religious belief, observance or practice.” Id.
According to the complaint, once an employee completed the religious exemption
form, “a board of area religious leaders” would review it and determine whether to
approve an exemption from the vaccination policy. Dkt. 1 at 9.
Smith contends that she “holds sincere bona fide religious beliefs that
preclude her from receiving a COVID-19 vaccine.” Id. at 17. On October 2, 2021,
Smith declined to receive the influenza vaccine “[d]ue to a matter of conscience,”
as shown on a “Season Influenza Vaccine—Declination Statement” that was
provided to UTMB. Dkt. 1-1 at 4. Yet, Smith “did not complete [UTMB]’s form to
request a religious exemption [from the COVID-19 vaccine] because of [what she
perceived to be] the form’s intrusive nature and because [she] was unable to obtain
a spiritual leader’s attestation as to the sincerity of [her] beliefs.” Dkt. 1 at 12.
On February 16, 2022, UTMB notified Smith via an intent-to-terminate
letter that she “will be no longer eligible to work at UTMB after March 18, 2022,”
due to her failure to either receive the COVID-19 vaccine or “an approved
exemption and accommodation.” Dkt. 1-1 at 7. UTMB gave Smith the opportunity
to respond by March 18, 2022, “in writing if any of [the] facts are incorrect or if
there are any reasons why this action should not be taken.” Id. at 7–8. On March
14, 2022, Smith submitted a rebuttal letter to UTMB’s intent to terminate. In that
letter, she wrote:
Case 3:24-cv-00336 Document 29 Filed 12/18/25 in TXSD Page 2 of 11

3
Like most modern pharmaceuticals, the mRNA and other
COVID-19 “vaccines” were developed/created using aborted fetal
tissue. Abortion is an aberration to God and is the murder of a living
human being. Proof of this is in Exodus 20:13, “You must not commit
murder.” To extinguish the life of an unborn, innocent human being
is wicked enough, but none should profit from such a despicable
practice. I will never knowingly introduce the products of these
abominable child sacrifices into my body.
Dkt. 1-1 at 13–14.
Smith alleges that she “informed [UTMB] of [her bona fide religious] beliefs
in 	writing 	and 	requested 	to 	be 	allowed 	to 	telework 	as 	a 	reasonable
accommodation,” but that “[UTMB] refused to engage in the interactive process
with [Smith] regarding her religious accommodation request.” Dkt. 1 at 18. UTMB
terminated Smith’s employment on April 19, 2022, for failing to comply with its
COVID-19 vaccination policy by either becoming fully vaccinated or obtaining a
medical or religious exemption.
In her complaint, Smith alleges that UTMB discriminated against her on the
basis of her religion in violation of Title VII of the Civil Rights Act of 1964 by failing
to accommodate her religious beliefs. UTMB has moved to dismiss Smith’s lawsuit
for several reasons. First, UTMB argues that Smith’s failure to timely effect service
should result in dismissal. Second, UTMB contends that Smith’s lawsuit is
untimely because she did not file her lawsuit within 90 days of receiving her right
to sue letter from the Equal Employment Opportunity Commission (“EEOC”).
Third, UTMB insists that Smith has failed to state a religious discrimination or
religious failure-to-accommodate claim. I will examine each argument below.
LEGAL STANDARD
A complaint may be dismissed for “failure to state a claim upon which relief
can be granted.” Fed. R. Civ. P. 12(b)(6). To avoid dismissal under Rule 12(b)(6),
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
Case 3:24-cv-00336 Document 29 Filed 12/18/25 in TXSD Page 3 of 11

4
evaluating a Rule 12(b)(6) motion, a court may consider: (1) the pleadings and any
attachment to the pleadings; and (2) documents that a defendant attaches to its
motion to dismiss if those documents are referenced in the plaintiff’s complaint
and are central to the plaintiff’s claim. See Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 498–99 (5th Cir. 2000). “A document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (cleaned up).
ANALYSIS
A. 	S MITH ’S F AILURE TO TIMELY E FFECT S ERVICE I S NOT A REASON TO
D ISMISS THIS CASE
UTMB’s first argument is that Smith’s lawsuit should be dismissed because
she failed to timely effect service on UTMB. Smith filed her original complaint on
November 21, 2024. She did not properly serve UTMB until July 22, 2025, or 244
days after the lawsuit was filed. Smith contends that service was delayed because
she mistakenly assumed that a summons would be issued automatically. Once she
realized that was not the case, Smith requested a summons and had UTMB served.
The Federal Rules provide that:
If a defendant is not served within 90 days after the complaint is filed,
the court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order
that service be made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time for service
for an appropriate period.
Fed. R. Civ. P. 4(m). Even if good cause is lacking, a district “court has discretionary
power to extend the time for service.” Millan v. USAA Gen. Indem. Co., 546 F.3d
321, 325 (5th Cir. 2008). “A discretionary extension may be warranted, ‘for
example, if the applicable statute of limitations would bar the refiled action, or if
the defendant is evading service or conceals a defect in attempted service.’” Id.
(quoting Fed. R. Civ. P. 4(m) advisory committee’s note to 1993 amendment).
Case 3:24-cv-00336 Document 29 Filed 12/18/25 in TXSD Page 4 of 11

5
“[W]here the applicable statute of limitations likely bars future litigation, a
district court’s dismissal of claims under Rule 4(m) should be reviewed under the
same heightened standard used to review a dismissal with prejudice.” Millan, 546
F.3d at 326. “Dismissal with prejudice . . . is an extreme sanction that deprives a
litigant of the opportunity to pursue his claim.” Gonzalez v. Firestone Tire &
Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980). Consequently, the Fifth Circuit has
limited a district court’s discretion to dismiss claims with prejudice to those cases
in which “a clear record of delay or contumacious conduct by the plaintiff exists
and a lesser sanction would not better serve the interests of justice.” Millan, 546
F.3d at 326 (quotation omitted).
A plaintiff alleging a Title VII claim must file a civil action no more than 90
days after she receives statutory notice of her right to sue from the EEOC. See 42
U.S.C. § 2000e–5(f)(1). Dismissing Smith’s lawsuit for lack of timely service would
preclude Smith from pursuing her Title VII claims. That would be incredibly unfair
given that Smith is a pro se litigant who, quite understandably, does not have a
firm grasp of the procedures surrounding the issuance of a summons. Because
nothing in the record before me suggests that the delay in service was intentionally
caused by Smith or that UTMB has been prejudiced in any way, this court lacks
discretion to dismiss this action for untimely service. See Millan, 546 F.3d at 326.
Thus, I recommend that the motion to dismiss for untimely service be denied.
B. 	S MITH ’S F AILURE TO TIMELY F ILE H ER L AWSUIT I S S AVED BY THE
E QUITABLE TOLLING D OCTRINE
UTMB next argues that Smith’s Title VII claim should be dismissed because
it is untimely. As discussed, Smith had 90 days from the date she received her right
to sue letter from the EEOC to file a civil action. See 42 U.S.C. § 2000e–5(f)(1).
“The ninety-day window is strictly construed and is a precondition to filing suit in
district court.” Duron v. Albertson’s LLC, 560 F.3d 288, 290 (5th Cir. 2009)
(quotation omitted).
Case 3:24-cv-00336 Document 29 Filed 12/18/25 in TXSD Page 5 of 11

6
Smith admits that she received her EEOC right to sue letter on August 22,
2024. See Dkt. 1 at 1. Smith was thus required to file her lawsuit by November 20,
2024. Although Smith put her lawsuit in the mail on November 19, 2024, the
Clerk’s office did not receive Smith’s complaint until November 21, 2024, one day
outside the applicable limitations period. “[C]ompliance with a Filing requirement
is not satisfied by Mailing the necessary papers within the allotted time. The papers
must be filed by the clerk within the filing period specified in the applicable rule or
order.” Lee v. Dallas Cnty. Bd. of Ed., 578 F.2d 1177, 1178 n. 1 (5th Cir. 1978).
UTMB insists that this one day delay precludes this court from deciding this
matter. I disagree.
Title VII’s filing period is subject to equitable tolling. See Bernstein v.
Maximus Fed. Servs., Inc., 63 F.4th 967, 970 (5th Cir. 2023). “The doctrine of
equitable tolling preserves a plaintiff’s claims when strict application of the statute
of limitations would be inequitable.” Lambert v. United States, 44 F.3d 296, 298
(5th Cir. 1995) (citing Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428 (1965)).
“As a discretionary doctrine that turns on the facts and circumstances of a
particular case, equitable tolling does not lend itself to bright-line rules.” Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Instead, a court must “draw on general
principles to guide when equitable tolling is appropriate.” Id. Generally speaking,
“a litigant is entitled to equitable tolling of a statute of limitations only if the litigant
establishes two elements: (1) that [s]he has been pursuing [her] rights diligently,
and (2) that some extraordinary circumstance stood in [her] way and prevented
timely filing.” Menominee Indian Tribe of Wis. v. United States, 477 U.S. 250, 255
(2016) (quotation omitted).
This is not a case in which Smith haphazardly placed her complaint in the
mail, uncertain of when it would arrive at the courthouse steps. On November 19,
2024, Smith paid $36.10 to deliver the complaint to the Galveston federal
courthouse overnight. See Dkt. 17 at 37. The receipt clearly shows that she paid for
one-day service, with a scheduled delivery date of November 20, 2024. See id.
Case 3:24-cv-00336 Document 29 Filed 12/18/25 in TXSD Page 6 of 11

7
Unfortunately, the postal service did not timely deliver Smith’s mailing as
promised on November 20, 2024. For whatever reason, the lawsuit did not arrive
at the Galveston federal courthouse until November 21, 2024. Smith cannot be
blamed for the postal service’s tardiness, as she exercised due diligence in pursuing
her rights. In Smith’s own words, she “made an honest and good faith effort to
effect timely filing of her complaint.” Id. at 5.
Equitable tolling is “to be applied sparingly.” National R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 113 (2002). This case, however, presents a rare and
exceptional circumstance that warrants applying the doctrine. To deny equitable
relief here would send a message to pro se litigants that the only way to ensure a
document is timely filed is if they personally deliver that document to the
courthouse. In the present case, that is unworkable considering that Smith lives in
Mount Pleasant, Texas—a town more than 300 miles from the Galveston federal
courthouse. Smith took reasonable steps to ensure that her complaint reached the
courthouse by the November 20, 2024 deadline. A strict adherence to the 90-day
statute of limitations would be inequitable here. As I have stated before, this “Court
will go to great lengths to exercise its discretion to ensure a litigant has an
opportunity to present her case to a judge or jury—especially when circumstances
completely outside her control would otherwise slam the courthouse door in her
face.” Jefferson v. Haza Foods, No. 3:17-cv-00359, 2018 WL 5268756, at *6 (S.D.
Tex. Oct. 5, 2018). Accordingly, I recommend that UTMB’s motion to dismiss for
Smith’s failure to timely file her lawsuit be denied.
C. 	S MITH HAS S TATED A R ELIGIOUS FAILURE-TO -ACCOMMODATE CLAIM
I now turn to UTMB’s argument that Smith fails to state a religious failure-
to-accommodate claim under Rule 12(b)(6).
Title VII makes it unlawful for an employer to “discriminate against any
individual with respect to [her] compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1).
“Title VII . . . requires employers to accommodate the religious observances or
Case 3:24-cv-00336 Document 29 Filed 12/18/25 in TXSD Page 7 of 11

8
practices of applicants and employees.” Hebrew v. Tex. Dep’t of Crim. Just., 80
F.4th 717, 721 (5th Cir. 2023) (citing 42 U.S.C.. § 2000e(j)). “An employer has the
statutory 	obligation 	to 	make 	reasonable 	accommodations 	for 	the 	religious
observances of its employees, but is not required to incur undue hardship.” Weber
v. Roadway Exp., Inc., 199 F.3d 270, 273 (5th Cir. 2000).
To plead a Title VII failure-to-accommodate claim, Smith must allege that:
“(1) she held a bona fide religious belief, (2) her belief conflicted with a requirement
of her employment, (3) her employer was informed of her belief, and (4) she
suffered an adverse employment action for failing to comply with the conflicting
employment requirement.” Davis v. Fort Bend County, 765 F.3d 480, 485 (5th Cir.
2014) (quotation omitted). Although Smith does “not have to submit evidence to
establish a prima facie case of discrimination at this stage, [Smith must] plead
sufficient facts on all of the ultimate elements of a [failure-to-accommodate] claim
to make [her] case plausible.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470
(5th Cir. 2016).
UTMB argues that Smith’s claim fails because (1) Smith “did not initiate
[UTMB’s established process for requesting a religious exemption] by choosing not
to 	fill 	out 	the 	UTMB 	form 	[for 	requesting 	a 	COVID-19 	exemption]”; 	and
(2) because “[i]nstead of requesting religious exemption, [Smith] requested a
‘100% work from home exemption.’” Dkt. 15 at 15. Neither of UTMB’s arguments
is availing.
Smith attached the March 21, 2022 rebuttal letter that she sent to UTMB to
her complaint. See Dkt. 1-1 at 9–15. Accordingly, that letter is considered part of
Smith’s pleadings and is properly considered on a motion to dismiss. See Collins
v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). In that
rebuttal letter, Smith articulated her bona fide religious beliefs and quoted
scripture. See Dkt. 1-1 at 13–14. While Smith’s complaint could be clearer about
the timeline of events, the attachments to her complaint show that UTMB received
her rebuttal letter—and thus, were on notice of her bona fide religious beliefs and
Case 3:24-cv-00336 Document 29 Filed 12/18/25 in TXSD Page 8 of 11

9
her need for a religious accommodation. UTMB received Smith’s rebuttal letter
well in advance of terminating her employment on April 19, 2022. Accordingly, it
is plausible that UTMB should have accommodated Smith or at least engaged in
the interactive process before terminating her.
UTMB makes too much of Smith’s refusal to complete its COVID-19
exemption form. “An employee is not required to use magic words to make a
legitimate request for a religious accommodation under Title VII, but they must at
least say something to indicate their need for an accommodation.” Swanson v.
Lilly USA, LLC, No. 1:23-cv-00831, 2024 WL 4815867, at *8 (S.D. Ind. Nov. 15,
2024) (quotation omitted). While Smith might not have put UTMB on notice of
her need for a religious accommodation prior to UTMB sending her an intent-to-
terminate letter, UTMB unquestionably knew about her need for a religious
accommodation after it received her March 21, 2022 rebuttal letter, and before it
terminated her employment.
UTMB also makes too much of the fact that Smith styled her request as a
work-from-home exemption, rather than a COVID-19 exemption. “An employee
may object to an employer’s vaccine mandate on both religious and non-religious
grounds.” Passarella v. Aspirus, Inc., 108 F.4th 1005, 1009 (7th Cir. 2024). Thus,
Smith’s phrasing of her request as a work-from-home exemption does not change
the fact that UTMB had written notice that she would not take the COVID-19
vaccine, at least in part, because she believed it to be profiting from murder, which
she considers “an aberration to God” based on certain scripture. See Dkt. 1-1 at 13–
14. This was enough to put UTMB on notice of Smith’s bona fide religious belief
and her need for a religious accommodation. Accordingly, Smith has plausibly
stated a religious failure-to-accommodate claim. Smith’s failure-to-accommodate
claim should not be dismissed at this early pleading stage.
Case 3:24-cv-00336 Document 29 Filed 12/18/25 in TXSD Page 9 of 11

10
D. 	S MITH HAS S TATED A R ELIGIOUS D ISPARATE TREATMENT CLAIM BASED
ON A F AILURE TO ACCOMMODATE3
Finally, I must address UTMB’s argument that Smith fails to state a Title VII
religious disparate treatment claim under Rule 12(b)(6).
UTMB argues that Smith cannot state a religious disparate treatment claim
because she “has not alleged any facts supporting” “membership in a protected
class,” “that she was qualified for the position,” or “that she was treated less
favorably than was a similarly situated employee outside the protected class.”
Dkt. 15 at 13. If this were a racial or sex discrimination case, then UTMB might
have a point. But UTMB has identified the wrong standard for a religious disparate
treatment claim based on a failure to accommodate a religious practice, which is
the type of claim that Smith advances in this case.
“[T]he 	rule 	for 	disparate-treatment 	claims 	based 	on 	a 	failure 	to
accommodate a religious practice is straightforward: An employer may not make
an applicant’s religious practice, confirmed or otherwise, a factor in employment
decisions.” E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 773 (2015).
“An employer violates Title VII if the employee requires an accommodation of a
religious 	practice, 	and 	the 	employer’s 	desire 	to 	avoid 	the 	prospective
accommodation is a motivating factor in his decision to terminate the employee.”
Hebrew, 80 F.4th at 724 (cleaned up). “This ‘motivating factor’ standard is
‘broader than the typical but-for causation standard’ and encompasses many
claims of religious discrimination.” Id. (quoting Nobach v. Woodland Vill. Nursing
3 If I were to look only at the headings in Smith’s complaint, it would seem that she has
alleged only a failure-to-accommodate claim. But federal courts “hold pro se plaintiffs to
a more lenient standard than lawyers when analyzing complaints.” Chhim, 836 F.3d at
469. “A document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned up). So long as Smith
“plead[s] factual allegations that raise the right to relief above the speculative level,” she
can state a claim, even if she does not expressly name that claim in her complaint. Chhim,
836 F.3d at 469. As discussed below, Smith pleads factual allegations that raise her right
to relief on a religious disparate treatment claim based on a failure to accommodate above
a speculative level.
Case 3:24-cv-00336 Document 29 Filed 12/18/25 in TXSD Page 10 of 11

11
Ctr., Inc., 799 F.3d 374, 378 (5th Cir. 2015)). “[M]otive is especially easy to infer
where an employee has submitted a request for an accommodation or where the
employer knows of the employee’s religious practice.” Hebrew, 80 F.4th at 724.
Here, after giving Smith notice of its intent to terminate her employment,
but prior to actually doing so, UTMB knew that Smith refused to receive the
COVID-19 vaccine because she believed the vaccine to be a “profit from the
termination/murder/abortion 	of 	a 	human 	life,” 	contrary 	to 	a 	biblical
commandment not to commit murder. Dkt. 1-1 at 14. Thus, UTMB knew, at a
minimum, of Smith’s religious belief that prevented her from receiving the COVID-
19 vaccine. That is enough to survive the pleading stage.
CONCLUSION
For the reasons set forth above, I recommend that UTMB’s motion to
dismiss Smith’s Title VII religious failure-to-accommodate claim and religious
disparate treatment claim be denied.
As a general rule, the parties have 14 days from service of this Memorandum
and Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed.
R. Civ. P. 72(b)(2). Because the holidays are upon us, I will extend the deadline for
either side to objection to my memorandum and recommendation until Friday,
January 9, 2026. Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this ___ day of December 2025.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
Case 3:24-cv-00336 Document 29 Filed 12/18/25 in TXSD Page 11 of 11