Hunt v. Sunrise Operations LLC

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ANDREW HUNT,
Plaintiff,
v.
SUNRISE OPERATIONS LLC, et al.,
Defendants.
Case No. 23-cv-06441-SI
ORDER RE: MOTIONS FOR
SUMMARY JUDGMENT; MOTION TO
EXCLUDE DR. MICHAEL MINA
Re: Dkt. Nos. 150, 153, 154, 193
Before the Court are summary judgment motions filed by the parties in this religious
discrimination suit. Defendant “The Pasha Group” (hereinafter, “Pasha”) filed a motion for
summary judgment or partial summary judgment on the basis that it is not plaintiff’s employer.
Defendant Sunrise Operations LLC (“Sunrise”) filed a motion for summary judgment on all claims
due to an absence of any factual disputes. Plaintiff filed a cross-motion for summary judgment
against Sunrise, seeking to establish his prima facie case of Sunrise’s failure to accommodate his
religious beliefs under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. sections
2000e et seq. and the Fair Employment and Housing Act (“FEHA”), California Government Code
sections 12900 et seq. Defendants also moved to exclude plaintiff’s rebuttal expert, Dr. Michael
Mina.
For the reasons set for below, the Court GRANTS Pasha’s motion for summary judgment.
Dkt. No. 150. The Court DENIES IN PART and GRANTS IN PART Sunrise’s motion for summary
judgment and DENIES Sunrise’s motion to exclude Dr. Mina. Dkt. Nos. 153, 193. The Court
GRANTS IN PART and DENIES IN PART plaintiff’s cross-motion for partial summary judgment.
Dkt. No. 154.
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BACKGROUND
I. Factual Background
A. Plaintiff’s Employment on the S.S. Horizon Pacific
Plaintiff Andrew Hunt served as an Engineer for an old container ship, the S.S. Horizon
Pacific1 since approximately 2010. Dkt. No. 61 (“TAC”) ¶¶ 1, 21. In July of 2018, defendant
Sunrise assigned plaintiff the position of Permanent Chief Engineer on the S.S. Horizon Pacific.
Dkt. No. 150-1 (“First Washburn Decl.”) ¶ 11; Dkt. No. 150-2, Ex. B. As Chief Engineer, plaintiff
led the ship’s engineering department of approximately 12 officers and crew to perform maintenance
and repair work. Dkt. No. 153-1 (“Second Washburn Decl.”) ¶ 2. 2 The S.S. Horizon Pacific’s
service route involved round-trip voyages from Oakland to Long Beach to Honolulu and then back
to Oakland.3 Id. ¶ 10.
Sunrise hires, pays, and manages the crew of four vessels, including the S.S. Horizon
Pacific. Dkt. No. 150-1 ¶ 4. Each Sunrise vessel is crewed with approximately 24 employees, each
of whom is a member of a maritime union. Id. ¶ 6. Plaintiff was a member of the engineer’s union,
the Marine Engineers Beneficial Association (“MEBA”). Id. ¶ 10; TAC ¶ 11. A collective
bargaining agreement (“CBA”) between MEBA and Sunrise, as amended by letters of
understanding, prescribes engineers’ terms of employment. Id. ¶¶ 7-8. Plaintiff’s work was
supervised by Sunrise, in accordance with its CBA with MEBA. Id. ¶ 13. Defendant Sunrise is a
subsidiary of defendant Pasha. Id. ¶¶ 2-3, Dkt. No. 150-2, Ex. A. Pasha does not hire, pay, or
manage any vessel crews. Id. ¶ 5. Pasha is not a party to any agreement for crew working on
Sunrise’s four vessels. Id. ¶ 9.
1 In September 2022, the S.S. Horizon Pacific completed her last voyage before being laid
up in San Diego and then towed to Texas for scrapping. Dkt. No. 153-1 (“Second Washburn Decl.”)
¶ 12.
2 Edward Washburn, the Senior Vice President of Sunrise Operations, submits two
declarations in support of defendants’ briefing on the motions before the Court. Dkt. Nos. 150-1,
153-1. The Court hereinafter cites to these declarations by docket number for ease of reference.
3 While Washburn characterizes each voyage as taking 14 days round-trip (Dkt. No. 153-1
¶ 10), plaintiff’s declaration states that the voyage between California and Honolulu took 4 to 5 days
each way, depending on the speed of the vessel (Dkt. No. 173-1 ¶ 21).
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B. The Covid-19 Pandemic and CDC Guidance for Ships
In July of 2020, the Centers for Disease Control and Prevention (“CDC”) issued “Interim
Guidance for Ships on Managing Suspected or Confirmed Cases of Coronavirus Disease 2019
(COVID-19),” which provided three options to ships with confirmed or suspected cases of Covid-
19. Dkt. No. 153-1 ¶ 20; see also Dkt. No.153-5 (“Timme Decl.”) ¶ 29; Dkt. No. 173-4 (“Weis
Decl.”) ¶ 10. CDC Option 1 was a “complete crew change out,” meaning all of the ship’s crew
would disembark for a 14-day shoreside quarantine (if permitted by local authorities). Id. ¶ 21. A
private company would then disinfect the ship and a new crew would embark to resume operations.
Id. CDC Option 2 was a “working quarantine” which called for a 14-day onboard quarantine
requiring social distancing, face masks, and the disinfection of the ship, and required the ship to
remain close to shore for potential medical evacuations. Id. ¶ 25. CDC Option 3 was to “temporarily
discontinue operations.” Id. ¶ 27. This option required the ship to remain at dock, berth, or
anchorage for a 14-day quarantine. Id. To comply with CDC guidance, the U.S. Coast Guard also
issued advisories and “Captain of the Port Orders” to ships with active or suspected Covid-19 cases,
including warnings that the failure to obey may be punishable with civil and criminal penalties. Id.
¶ 29; Timme Decl. ¶¶ 24-29, 42; Weis Decl. ¶¶ 43-44.
On September 23, 2021, the CDC issued new guidance exempting ships with “100% of crew
fully vaccinated” from selecting one of the three options in the event of a Covid-19 case, and instead
allowing the crew to be managed “according to CDC’s guidance for fully vaccinated persons
following exposure.” Id. ¶ 16; Timme Decl. ¶ 52. The September 23, 2021 CDC update also
modified CDC Option 1, “crew change outs” for ships without 100% fully vaccinated crews, such
that a ship’s “complete” crew was no longer required to be changed out in the event of a case of
Covid-19 under CDC Option 1, only any unvaccinated crewmembers. Weis Decl. ¶¶ 15-16.
C. Sunrise’s Covid-19 Vaccination Policies
On May 17, 2021, after the Covid-19 vaccination became available, Sunrise created a Covid-
19 vaccination incentive program offering a $200.00 bonus to each crew member with proof of full
vaccination. Dkt. No. 150-1 ¶ 15; Dkt. No. 150-2, Ex. C. On October 25, 2021, Edward Washburn,
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Sunrise’s 30(b)(6) designee and Senior Vice President of Operations at Sunrise, signed a draft Letter
of Understanding (“LOU”) between MEBA and Sunrise (the “Company”) that required MEBA’s
members employed on Sunrise vessels to be fully vaccinated against Covid-19 or to have received
a medical or religious exemption, in order to be considered fit for duty. Id. ¶¶ 17-18; Dkt. No. 150-
2, Ex. D. That LOU provides that “[r]equests for religious exemptions will be handled between the
Union and the Company on a case-by-case basis.” Id. ¶ 17, Ex. D.4
D. Pasha’s Covid-19 Strategic Response Team & Vaccination Policies
On March 17, 2020, the day after counties in the Bay Area began issuing shelter in place
orders in response to the Covid-19 pandemic, Pasha prepared a memorandum, produced to plaintiff
in discovery. Dkt. No. 195-1 (“McCullough Decl.”) ¶ 5. The memorandum notified “all Employees
of The Pasha Group family of companies” that a “Strategic Response Team” had been established
to provide “situational updates” and to ensure that employees could “perform their day to day job
activities.” Dkt. No. 195-2, Ex. A; Dkt. No. 192-2 (“Irvine Depo.”) at 26:12-20, 28:17-29:7. 5 The
memorandum stated that the Strategic Response Team was composed of “Chris Irvine - HR”,
employees of Pasha’s subsidiaries including “Chris Hamlin - Pasha Hawaii/PAS”, “Mike Caswell -
PST/HIS”, “Edward Washburn - Pasha Hawaii/ Vessel”, and others. Id.; see also Dkt. No. 192-2 at
27:10-13; 46:12-49:4.
The Strategic Response Team met weekly beginning in March 2020, but meeting frequency
tapered to monthly towards the end of 2020. Dkt. No. 192-2 at 27:20-28:22. Washburn testified
that he does not think he attended any Strategic Response Team meetings. Dkt. No. 195-5
(“Washburn Depo.”) at 133:11-17. Christine Irvine testified that she did not recall if Washburn
attended any of these meetings but thinks “he was not there.” Dkt. No. 195-3 (“Irvine Depo.”) at
4 Pasha is not a party to the LOU. Id. ¶ 19.
5 Parties submit overlapping and distinct portions of the deposition transcripts of Pasha’s
30(b)(6) designee Christine Irvine and Sunrise’s 30(b)(6) designee Edward Washburn. Plaintiff
deposed Irvine four times: on December 17, 2025; May 7, 2026; May 13, 2026; and May 27, 2026,
and plaintiff deposed Washburn three times: on April 14, 2026; April 15, 2026, and May 27, 2026.
McCullough Decl. ¶¶ 11-12. For ease of reference, the Court refers to each of these deposition
transcripts by docket number.
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30:17-21, 37:16-18. The Strategic Response Team discussed whether to mandate vaccination for
Covid-19 and the need for 100% compliance. Dkt. No. 192-2 at 31:13-34:25. Pasha’s Executive
Team subsequently met to discuss a Covid-19 vaccination policy. Id. at 82:10-83:10. The Strategic
Response Team never discussed whether to allow religious exemptions to the vaccination
requirement and did not review employees’ requests for exemptions. Id. at 31:4-12, 44:1-14.
In September 2021, “on behalf of the Pasha Group Executive Team” Irvine issued a
memorandum to “Pasha employees” requiring “all employees, including remote employees, to
provide proof of vaccination or receive qualified [religious or medical] exemptions as a condition
of continued employment.” Dkt. No. 150-1 ¶ 28; Dkt. No. 150-2, Ex. F. The second page of the
memorandum states that Pasha’s “[p]olicy requires all non-bargaining employees, including remote
employees” to provide proof of vaccination or receive qualified exemptions. Dkt. No. 150-2, Ex.
F. It is undisputed that Pasha’s September 2021 policy applied only to “non-union employees” of
Pasha and its subsidiary companies, and therefore did not apply to Sunrise union employees or to
plaintiff. Dkt. No. 150-1 ¶ 28; Dkt. No. 192-2 at 50:7-8.6
E. Plaintiff’s Request for Religious Exemption & Meetings with Washburn
On November 5, 2021, plaintiff emailed Washburn, Claudia Cimini (a MEBA union
representative), and others a request for religious exemption from the LOU’s Covid-19 vaccination
requirement. Dkt. No. 154-4 at 18-36 (ECF pagination); Dkt. No. 154-2 (“Washburn Depo.”) at
215:15-20; Dkt. No. 173-1 (“Hunt Decl.”) ¶ 3. In that request, plaintiff stated that, as a Christian,
he strongly opposes abortion and must avoid intentionally contaminating his body with synthetic
genetic material. Id.
On November 9, 2021, Captain Greg Johnson, Fleet Superintendent, with approval from
Washburn, responded to plaintiff’s request for religious exemption in an email on Sunrise letterhead.
Dkt. No. 154-4 at 37-38 (ECF pagination); Dkt. No. 154-2 at 222:24-39. As SVP of Sunrise,
6 At the hearing on August 14, 2026, counsel for plaintiff confirmed plaintiff does not dispute
Pasha’s policy applied only to non-union employees.
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Washburn made the decision to deny plaintiff’s request for religious exemption. Dkt. No. 150-1
¶ 30. The November 9, 2021 letter stated in relevant part:
We have reviewed your request for a religious exemption . . . We
recognize that you have sincerely held religious beliefs that you feel
would be violated were you to get a vaccine for COVID 19.
Although Sunrise is willing to provide you with an accommodation
on the basis of your sincerely held religious beliefs, our options to
grant such an exemption are restricted by the close quarters of the
shipboard living and working environment, as well as limited access
to medical care while a vessel is underway. The company further
recognizes that allowing non-vaccinated crew to continue to sail
aboard our ships puts the other crewmembers at undue risk. . . .
Should you fail to be fully vaccinated by December 31, 2021, you will
lose your position as a permanent officer and you will no longer be
eligible to sail on vessels crewed by Sunrise Operations LLC.
Id. After receiving the letter, plaintiff had a conversation with MEBA to discuss his request for
religious exemption, and Cimini arranged a meeting with Washburn to discuss possible religious
accommodations. Hunt Decl. ¶¶ 4, 5.
On December 8, 2021, plaintiff met with Cimini and Washburn to discuss plaintiff’s request
for a religious exemption and possible accommodations. Id. According to plaintiff, Washburn
began that meeting by stating that no accommodations would be considered. Dkt. No. 174-7, Ex. 7
(“Hunt Depo.”) at 242:22-25; Hunt. Decl. ¶ 6. Plaintiff and Cimini both testified that Washburn
told plaintiff that he “hoped Mr. Hunt would change his religious beliefs.” Dkt. No. 174 (“Cherne
Decl.”) ¶¶ 7, 9; Dkt. No. 210-2, Ex. 9 (“Cimini Depo.”) at 140:1-13; Hunt Depo. at 213:4-6. Plaintiff
testified that Washburn’s facial expression when he made the comment was “kind of shocking” and
“like someone trying to hide a smirk.” Hunt Depo. at 211:6-212:14; Hunt Decl. ¶ 8. Cimini testified
that she “was stunned” because the comment was “inappropriate” and she “couldn’t believe he said
it.” Cimini Depo. at 140:6-13. Cimini testified that she asked Washburn, “What are you saying?”
but could not recall Washburn’s response. Id. Plaintiff also testified that Washburn repeated that
he hoped plaintiff would change his religious beliefs at a second meeting on December 20, 2021.
Hunt Depo. at 256:10-12, 257:1-9. Washburn declined to consider the accommodation proposals
like testing, masking, or distancing suggested by plaintiff. Hunt Decl. ¶ 10.
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During oral argument, counsel for Sunrise clarified that there is a factual dispute as to
whether Washburn said that he hoped plaintiff would change his religion. According to Sunrise,
Washburn actually stated that he hoped plaintiff would change his mind. Washburn testified during
his deposition: “we liked Andrew Hunt. He was an excellent engineer. I wanted him back. I told
him, many times, I hope he changes his mind.” Dkt. No. 170-3 (“Washburn Depo.”) at 226:10-13.
G. Denial of Accommodations & Unfit for Duty Determination
The parties characterize the subsequent events somewhat differently. According to plaintiff,
he was terminated as of December 31, 2021, consistent with the November 9, 2021 letter and what
Washburn told plaintiff at the December 20, 2021 meeting. Hunt Decl. ¶ 12; see also Dkt. No. 174-
5 (“Johnson Depo.”) at 152:9-12 (“Q: And so did the company remove him from his permanent
position as of December 31, 2021? A: I believe so. Or we just didn’t request him to come back to
the vessel.”). Plaintiff declares that on December 21, 2021, plaintiff emailed Washburn, Johnson,
and others, confirming that he would be fired as of December 31, 2021 if he did not get vaccinated,
and he received no reply. Hunt Decl. ¶ 13.
According to Washburn, Hunt was “offered a leave of absence as an accommodation in
response to his request for an exemption” and then resigned in January 2022 when Hunt took a job
working for another vessel operator. Dkt. No. 153-1 ¶ 3; see also Dkt. No. 170-3 at 32:1-35:7. On
December 20, 2021, Washburn sent an email to Johnson and others stating “[Hunt] is unfortunately
giving up his position. He cannot return unvaccinated.” Dkt. No. 174-4 at 42 (ECF pagination).
It is undisputed that on February 7, 2022, Washburn sent plaintiff a formal notice on Sunrise
letterhead finding him “unfit for duty.” Id.; Dkt. No. 150-2, Ex. E. That letter states, in relevant
part,
Sunrise Operations LLC has considered your email dated December
1, 2021 . . .
We understand that you have offered to be tested before you get on
the vessel and to stay aboard throughout your rotation. Test results
are not always accurate . . . The accommodation of allowing you to
serve onboard unvaccinated would pose a direct threat to all of the
other members of the crew who will have an increased risk of
contracting the virus and would not have access to medical help while
underway. Additionally the accommodating of an unvaccinated
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person in close quarters on ships would put the company under undue
hardship because of the increased risk of infection or spreading of the
virus from an unvaccinated person and the resultant disruption of
vessel operations and the flow of goods to Hawaii.
The company’s policy, as agreed by the union in the LOU, will apply
to you and since you are not vaccinated against COVID, you are unfit
for duty.
Id. Plaintiff characterizes this letter as “a mere formality” and declares that he was actually
terminated at the end of December. Hunt Decl. ¶ 14.
Plaintiff’s request was the only request for a religious exemption from the Covid-19
vaccination requirement in the LOU with MEBA that Sunrise received. Dkt. No. 150-1 ¶ 29.7
Sunrise received no requests for medical exemptions. Id. ¶ 29.
II. Procedural Background
Plaintiff filed this lawsuit in December 2023. Dkt. No. 1. On October 25, 2024, plaintiff
filed the Third Amended Complaint (“TAC”), which is now the operative complaint. See Dkt. No.
61. The TAC asserts seven claims for relief under both federal and state law. On November 8,
2024, defendants Sunrise and Pasha answered the TAC. See Dkt. Nos. 64, 65. A third defendant,
plaintiff’s union, MEBA, answered the TAC on January 22, 2025, after the Court denied the union’s
motion to dismiss. See Dkt. Nos. 70, 71. MEBA has since settled with plaintiff and is no longer in
this case. Dkt. Nos. 93, 96. Following numerous extensions of the pretrial deadlines, the Court set
a deadline of May 15, 2026, for the filing of dispositive motions.
On May 4, 2026, defendants moved for judgment on the pleadings as to plaintiff’s fourth
claim for “Religious Coercion – Harassment” under Title VII. Dkt. No. 149. The Court denied
defendants’ motion on July 17, 2026. Dkt. No. 203.
Defendants Sunrise and Pasha have each filed motions for summary judgment. Dkt. Nos.
152, 153. Plaintiff has filed a cross-motion for partial summary judgment, seeking to establish his
prima facie case for his second and sixth claims for “Religious Discrimination – Failure to
Accommodate” under Title VII and FEHA, as to defendant Sunrise. Dkt. No. 154. Defendants
7 Sunrise also received one other religious exemption request from a non-MEBA employee
not governed by the LOU. See Dkt. No. 173-4 ¶ 36.
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have also filed a motion to exclude plaintiff’s rebuttal expert Dr. Michael Mina. Dkt. No. 193. The
motions are fully briefed. See Dkt. Nos. 170, 173, 191, 192, 195, 196, 206, 212.
LEGAL STANDARD
I. Expert Testimony
Federal Rule of Evidence 702 permits the introduction of expert testimony only if “(a) the
expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c)
the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects
a reliable application of the principles and methods to the facts of the case.” Fed. R. Evid. 702. “To
qualify as an expert, a witness must have ‘knowledge, skill, experience, training, or education’
relevant to such evidence or fact in issue.” U.S. v. Chang, 207 F.3d 1169, 1172 (9th Cir. 2000)
(citing Fed. R. Evid. 702). Expert testimony is admissible “only if it is both relevant and reliable.”
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
The proponent of the expert testimony has the burden of proving the proposed expert
testimony is admissible. Lust ex rel. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir.
1996). On December 1, 2023, Rule 702(d) was amended to “clarify and emphasize that expert
testimony may not be admitted unless the proponent demonstrates to the court that it is more likely
than not that the proffered testimony meets the admissibility requirements set forth in the rule.” Fed.
R. Evid. 702 (Adv. Comm. Note, 2023). However, Rule 702 “should be applied with a ‘liberal
thrust’ favoring admission.” Messick v. Novartis Pharm. Corp., 747 F.3d 1193, 1196 (9th Cir. 2014)
(citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993)). “Shaky but admissible
evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of
proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010).
Rule 702 requires that the trial court act as a “gatekeeper” by “making a preliminary
determination that the expert’s testimony is reliable.” Elsayed Mukhtar v. Cal. State Univ.,
Hayward, 299 F.3d 1053, 1063 (9th Cir. 2002) (citations omitted); see Daubert, 509 U.S. at 597.
The decision whether to admit or exclude expert testimony lies within the trial court’s discretion.
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See General Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997); United States v. Calderon-Segura,
512 F.3d 1104, 1109 (9th Cir. 2008). Additionally, Rule 702 “makes no relevant distinction between
‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge.” Kumho Tire, 526 U.S. at
147.
II. Summary Judgment
Summary judgment is proper if the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The moving party bears the
initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The moving party, however, has no burden to disprove matters
on which the non-moving party will have the burden of proof at trial. The moving party need only
demonstrate to the Court that there is an absence of evidence to support the non-moving party’s
case. Id. at 325.
Once the moving party has met its burden, the burden shifts to the non-moving party to
“designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324 (quoting then
Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must “do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence . . .
will be insufficient; there must be evidence on which the jury could reasonably find for the
[nonmoving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
In deciding a summary judgment motion, the Court must view the evidence in the light most
favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment.
. . .” Id. However, conclusory, speculative testimony in affidavits and moving papers is insufficient
to raise genuine issues of fact and defeat summary judgment. Thornhill Publ'g Co., Inc. v. Gen. Tel.
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& Elec. Corp., 594 F.2d 730, 738 (9th Cir. 1979). The evidence the parties present must be
admissible. Fed. R. Civ. P. 56(c).
When considering cross-motions for summary judgment, the Court must review each motion
“on its own merits.” Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132,
1136 (9th Cir. 2001) (internal quotation marks and citation omitted). The Court must consider the
evidence presented in support of each motion “to determine whether it present[s] a disputed issue
of material fact precluding summary judgment” on the other motion. Id. at 1135. In other words,
the Court collectively considers all of the evidence presented, then decides each motion for summary
judgment separately based on the sum of the evidence.
DISCUSSION
I. Defendants’ Motion to Exclude Plaintiff’s Expert Dr. Michael Mina
Defendants Sunrise and Pasha move to exclude plaintiff’s expert Dr. Michael Mina under
Federal Rule of Civil Procedure 37, Federal Rules of Evidence 702 & 7038, and Daubert, 509 U.S.
579 (1993). Dkt. No. 193. The Court addresses this motion at the outset because defendants also
argue that the Court should disregard Dr. Mina’s declaration submitted in support of plaintiff’s
opposition to Sunrise’s motion for summary judgment (Dkt. No. 173-3). For the reasons set forth
below, the Court DENIES defendants’ motion.
A. Plaintiff’s Objection
On May 5, 2025, plaintiff’s Settlement Conference Statement served on defendants’ counsel
apparently stated “Plaintiff will produce expert testimony of Michael Mina, M.D., Ph.D., the
nation’s foremost expert on vaccine testing, who is expected to testify … The Defendant’s vaccine
8 Rule 703 provides, “[a]n expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not
be admissible for the opinion to be admitted. But if the facts or data would otherwise be
inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value
in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” Fed. R.
Civ. P. 703.
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mandate was not science based.” Dkt. No. 193 at 1. Plaintiff objects to defendants’ disclosure of
plaintiff’s confidential settlement brief under ADR Local Rule 7-4(a).9 Dkt. No. 206 at 2.
Defendants argue that their citation to plaintiff’s Settlement Conference Statement was not
improper, largely because it did not attach plaintiff’s actual statement to the motion. Dkt. No. 212.
Defendants further state that, even if the quotation was improper, the Court should still take notice
of the undisputed fact that Dr. Mina has been retained for over a year. The Court agrees that
defendants’ quotation from a confidential settlement brief was improper under ADR Local Rule 7-
4(a) and sustains plaintiff’s objection.
B. Expert Disclosures and Opinions
Plaintiff’s June 1, 2026, expert disclosure did not include Dr. Michael Mina. Dkt. No. 193-
2, Ex. A (Plaintiff’s Expert Disclosure). Defendants’ June 1, 2026 disclosures designated Dr. Brian
Bourgeois and U.S. Coast Guard Rear Admiral Timme as retained experts. Dkt. No. 193-3, Ex. B
(Defendants’ Expert Disclosure). On June 15, 2026, plaintiff filed his opposition to Sunrise’s
motion for summary judgment, which included Dr. Michael Mina’s 33-page declaration. Dkt. No.
173-3 (“Mina Decl.”). On July 1, 2026, plaintiff served defense counsel with his rebuttal expert
designation, including Dr. Mina, “an expert in Infectious Disease Immunology.” Dkt. No. 193-4,
Ex. C (Plaintiff’s Rebuttal Expert Disclosure).
Dr. Bourgeois’s Opinions: Dr. Bourgeois is a medical doctor and CEO and Medical
Director of Offshore Medical Logistics who has provided medical guidance to mariners for 25 years
and is therefore familiar with medical emergencies at sea and shipboard logistics. Dkt. No. 193-3,
Ex. D-1. Dr. Bourgeois opines as to the heightened risks of Covid-19 for mariners who live and
9 ADR Local Rule 7-4(a) states, “[e]xcept as provided by a case-specific order entered in
advance of the settlement conference or in subdivision (b) of this local rule, this Court, the settlement
Judge, all counsel and parties, and any other persons attending the settlement conference shall treat
as ‘confidential information’ the contents of any written settlement conference statements, anything
that was said, any position taken, and any view of the merits of the case expressed by any participant
in connection with any settlement conference. ‘Confidential information’ shall not be: (1) Disclosed
to anyone not involved in the litigation (2) Disclosed to the assigned Judge; or (3) Used for any
purpose, including impeachment, in any pending or future proceeding in this Court. ADR Local
Rule 7-4(b) provides limited exceptions to confidentiality, none of which apply here.
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work in a finite space. Id., Ex. D-2. Further, Dr. Bourgeois opines that the requirement for all
onboard personnel to be vaccinated against Covid-19 was reasonable and judicious. Id.
Admiral Timme’s Opinions: Admiral Timme is a retired U.S. Coast Guard Rear Admiral
with over 30 years of experience in maritime safety and security who provides expert services to the
maritime community. Dkt. No. 193-3, Ex. B-1. Admiral Timme provides opinions on the Coast
Guard’s response to the Covid-19 pandemic and specifically on Captain of the Port Orders issued
to comply with CDC guidelines to control the spread of Covid-19 on ships. Id., Ex. B-2. Admiral
Timme opines as to the difficulties ships faced complying with each of the CDC’s three options for
ships without 100% vaccinated crews (crew change out, working quarantine, or temporarily
discontinuing operations). Specifically, Admiral Timme opines that by December 2021 the
presence of a Covid-positive crew member on a vessel without a 100% vaccinated crew was an
“operational catastrophe.” Id.
Dr. Mina’s Rebuttal Opinions: Dr. Mina is a physician and public health expert who
specializes in epidemiology. Dkt. No. 193-4. Dr. Mina acknowledges that in late 2021 vaccination
remained important and states that his opinions “should not be understood as minimizing the
benefits of vaccination or the seriousness of COVID-19.” Id. at 5-6. He opines on why vaccination
status alone was not a reliable proxy for infectiousness, and why testing and layered mitigation were
scientifically relevant to the risk of Covid-19. Id. Dr. Mina also provides limited opinions applying
his epidemiology opinions to the context of a ship based on his review of this case. Id. Dr. Mina
opines that allowing plaintiff to remain unvaccinated but subjecting him to pre-boarding testing,
day-of-testing, masking, eating in his stateroom, and other mitigation efforts would have reduced
plaintiff’s transmission risk to a level comparable to, and most likely lower than, vaccinated but
untested crew members who were not subject to the same restrictions. Id.
C. FRCP 37(c)(1)
Defendants argue that Dr. Mina should be excluded under Federal Rule of Civil Procedure
37(c)(1) because his opinions go beyond the scope of a rebuttal expert and he was therefore required
to be designated in plaintiff’s original Rule 26(a)(2) designation. Dkt. No. 193 at 4-9. Defendants
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argue that plaintiff is intentionally sandbagging them by withholding Dr. Mina’s report until after
Sunrise filed its motion for summary judgment.
Rule 26 requires a party to disclose the identities of any expert witnesses it may use at trial,
and provide their written reports, at the time and in the sequence that the court orders. See Fed. R.
Civ. P. 26(a)(2)(A)(B) & (D). Rule 26 also provides for the submission of rebuttal expert reports
within 30 days after the other party’s initial disclosure, “if the evidence is intended solely to
contradict or rebut evidence on the same subject matter identified by another party under Rule
23(A)(B), or (C).” Fed. R. Civ. P. 26(a)(2)(D)(ii). Under Rule 37(c)(1), “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
The Court has reviewed the expert reports and declarations of Dr. Bourgeois, Admiral
Timme, and Dr. Mina. Dr. Mina’s opinions go into considerable depth about Covid-19 and the
Covid-19 vaccination. But Dr. Mina’s expert report still generally contradicts or rebuts evidence
and opinion provided by Dr. Bourgeois and Admiral Timme. Specifically, Dr. Mina refutes
defendants’ expert testimony that supports defendants’ undue hardship affirmative defense. The
Court finds that even if Dr. Mina should have been disclosed earlier, any failure to disclose was
harmless because defendants still can still depose him prior to trial and because defendants’ more
limited requests in the alternative are available to cure any prejudice.10 Moreover, any failure to
disclose Dr. Mina prior to briefing the summary judgment motions was harmless because the Court’s
undue burden analysis would be the same even if Dr. Mina’s report more narrowly responded to the
opinions presented by Dr. Bourgeois and Admiral Timme.
10 Defendants request that, in the alternative, the Court (1) exclude Dr. Mina from plaintiff’s
case in chief, (2) only allow Dr. Mina to testify after defendants’ experts have testified, (3) strictly
limit Dr. Mina to rebutting specific testimony of defendants’ experts, and (4) hold an evidentiary/
Daubert hearing outside of the presence of the jury to determine the admissibility of his rebuttal
opinions before he is allowed to testify. Dkt. No. 212 at 10.
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D. Rules 702, 703, and Daubert
Defendants also argue that Dr. Mina is unqualified under Federal Rule of Evidence 702 to
render opinions on the shipping industry and its response to the Covid-19 pandemic. Dkt. No. 193
at 9-10. The Court agrees to the extent Dr. Mina does not have the training or knowledge to opine
on maritime standards, vessel command, Coast Guard enforcement, or how Sunrise should have
operated its vessel. But as plaintiff points out, Dr. Mina does not attempt to do so. See Dkt. No.
206 at 4. Many of Dr. Mina’s opinions applying his knowledge of Covid-19 to the shipping industry
are quite general. To the extent Dr. Mina intends to testify beyond his immunology expertise,
defendants can object to specific questions at trial and test his qualifications on cross-examination.
Finally, defendants contend that Dr. Mina’s opinions are not relevant, helpful, or reliable
under Federal Rules of Evidence 702, 703, and Daubert. Dkt. No. 193. Defendants rely almost
exclusively on several unpublished district of Oregon cases decided by the same judge on the same
day based on identical reasoning, striking Dr. Mina’s testimony as irrelevant and because his
opinions were not the product of reliable scientific methodology. See Berra v. PeaceHealth, No.
6:22-CV-00219-AA, 2026 WL 1509010, at *5-14 (D. Or. May 31, 2026); Salinas Navarrete v.
PeaceHealth, No. 6:22-CV-00181-AA, 2026 WL 1509008, at *5-14 (D. Or. May 31, 2026);
Trimmier v. PeaceHealth, No. 6:22-CV-00243-AA, 2026 WL 1509009, at *5-14 (D. Or. May 31,
2026); Hunter v. PeaceHealth, No. 6:22-CV-00187-AA, 2026 WL 1509007, at *5-14 (D. Or. May
31, 2026). However, one of the primary issues that the Oregon district court identified with Dr.
Mina’s report in these cases was that it relied on authorities not available to the defendant when it
considered the plaintiffs’ requests for religious accommodation. See id. Dr. Mina’s report in this
case is distinguishable because almost all of the authorities Dr. Mina’s report cites appear to have
existed before December 31, 2021, when plaintiff alleges he was terminated. Dkt. No. 193-4; see
Opp’n at 16. Thus, the Court finds that Dr. Mina’s opinions are relevant.
The Oregon district court also noted that Dr. Mina’s opinions regarding the Covid-19
vaccination changed significantly after he left his position at Harvard in 2021 to take positions at
biomedical and pharmaceutical device companies. To the extent that is the case, credibility
determinations are fodder for cross examination and the Court finds that Dr. Mina’s testimony is
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sufficiently reliable such that it may be helpful to the jury. See Primiano v. Cook, 598 F.3d at 564
(“Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and
attention to the burden of proof, not exclusion.”).
Accordingly, the Court DENIES defendants’ motion to exclude Dr. Mina without prejudice
to raising objections to specific questions that go outside the scope of his immunology expertise or
beyond his role as a rebuttal expert, at the time of trial. With this said, Dr. Mina may not testify
during plaintiff’s case in chief, may testify only after defendants’ experts, and must confine his
testimony to rebutting opinions offered by defendants’ retained experts. The Court considers Dr.
Mina’s declaration, submitted in support of plaintiff’s opposition to Sunrise’s motion for summary
judgment, while taking defendants’ arguments into consideration as to whether Dr. Mina’s
declaration creates a triable issue of fact.
II. Evidentiary Objections
A. Plaintiff’s Objection to Edward Washburn’s Declaration
Plaintiff objects to paragraphs 19, 21, 23, 27, 28, 29 and 30 of the Washburn declaration
(Dkt. No. 150-1) as lacking foundation to demonstrate Washburn’s personal knowledge of all
communications and decisions by Pasha executives and as improper legal conclusions regarding
defendants’ employer status. Dkt. No. 192 at 2. “At the summary judgment stage, we do not focus
on the admissibility of the evidence’s form. We instead focus on the admissibility of its contents.”
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Because the contents of the Washburn
declaration could be admissible at trial, the Court overrules plaintiff’s objection but takes into
consideration plaintiff’s evidence that contradicts the contested paragraphs.
B. Plaintiff’s Objection to the Timme Declaration
Plaintiff objects to paragraphs 30-42 and 48-52 of the Timme Declaration on the grounds
that these opinions exceed his disclosed expertise and lack foundation under Federal Rules of
Evidence 602 and 702. Dkt. No. 173 at 1-2. Sunrise argues that plaintiff’s objections to Admiral
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Timme’s expert opinion go to weight not admissibility. Dkt. No. 196 at 12. The Court agrees with
Sunrise and overrules plaintiff’s objection.
C. Plaintiff’s Objection to Sunrise’s Reply Evidence
Plaintiff objects to the declaration of Juliette B. McCullough (Dkt. No. 196-1) and the expert
report of retained forensic accountant Henry Kahrs (Dkt. No. 196-2) on the grounds that Sunrise
improperly submitted new evidence for the first time with its reply brief to its motion for summary
judgment. Dkt. No. 201. “While a court need not consider evidence submitted for the first time in
a reply, it may consider evidence and argument submitted with a reply that is responsive to
arguments raised in the non-moving party’s brief in opposition.” Cho v. CG Invites Co., No. 24-
CV-07112-WHO, 2025 WL 3493564, at *4 (N.D. Cal. Dec. 4, 2025) (quoting Zamani v. Carnes,
491 F.3d 990, 997 (9th Cir. 2007) and Ejonga v. Strange, No. 2:21-cv-01004-RJB-GJL, 2023 WL
4457142, at *1 (W.D. Wash. July 11, 2023)). Here, the evidence Sunrise submitted in reply is
directly responsive to plaintiff’s argument that Sunrise identifies “no actual amount of financial cost
it would have incurred had it accommodated Hunt.” Dkt. No. 173 at 19. Therefore, the Court
overrules plaintiff’s objection.
D. Pasha’s Objection to the Molinaro Declaration
Plaintiff’s opposition briefs (Dkt. Nos. 173, 192) to defendants’ motions for summary
judgment rely in part on the declaration of Ryan Molinaro (Dkt. No. 172). Molinaro declares that
he was employed by Pasha as Vice President of Automotive and was terminated for not complying
with Pasha’s Covid-19 vaccination requirement. Dkt. No. 172. Molinaro declares: “Senior VP
Chris Hamlin told me over the phone that the company CEO George Pasha was not going to approve
any exemption requests. Mr. Hamlin further told me that George Pasha didn’t want anyone around
him who was not vaccinated. Further stated Pasha will only honor a religious exemption from
Christian Scientists.” Id.
Pasha argues that the Molinaro declaration is inadmissible and should be disregarded by the
Court. Dkt. No. 195 at 2. Pasha objects that the declaration is dated June 3, 2025 (over a year ago),
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is not authenticated, and does not identify whether it was given for this case or in any litigation. Id.
at 2. Pasha also objects that the statements attributed to Chris Hamlin about George Pasha’s beliefs
are inadmissible because they constitute double (or triple hearsay) and lack foundation. Id. Finally,
Pasha objects that plaintiff did not disclose Ryan Molinaro until May 8, 2026 in a supplemental
disclosure, in which plaintiff claimed not to have any contact information for Ryan Molinaro, and
therefore Pasha has not had a reasonable opportunity to contact and depose him. Id.
When asked by the Court about this declaration at the hearing, counsel for plaintiff stated
that the Molinaro declaration was obtained from an attorney who had a different case against Pasha.
Declarations filed in connection with another case can be used to support a motion for summary
judgment. See Campbell v. Nat'l Passenger R. Corp., No. C05-05434 MJJ, 2008 WL 930992, at
*14-15 (N.D. Cal. Apr. 3, 2008) (overruling evidentiary objection). However, under Rule 56, an
“affidavit or declaration used to support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
The Court agrees with Pasha that this declaration improperly attests to George Pasha’s state
of mind without laying any foundation for how Ryan Molinaro or Chris Hamlin apparently learned
of George Pasha’s beliefs. The Court sustains Pasha’s objection and does not consider Molinaro’s
declaration to be relevant in ruling on defendants’ motions for summary judgment. See
“[C]onclusory, self-serving affidavit[s], lacking detailed facts and any supporting evidence,” are
insufficient to create a genuine issue of material fact. FTC v. Publ'g Clearing House, Inc., 104 F.3d
1168, 1171 (9th Cir.1997).
E. Sunrise’s Request that the Court Disregard Miscited Facts
In Sunrise’s reply brief to its motion for summary judgment, Sunrise highlights that plaintiff
miscited deposition testimony and asks the Court to disregard any miscited facts. Dkt. No. 196 at
10-11. The Court notes that both plaintiff and Sunrise made clerical errors, which made the evidence
more difficult to parse through. See, e.g, errata, Dkt. Nos. 214, 209, 205. Counsel for Sunrise and
plaintiff explained these errors when questioned by the Court at the hearing and confirmed they
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were not the result of artificial intelligence. The Court overrules Sunrise’s request. If parties plan
to proceed to trial, the Court admonishes that filings must be more organized.
III. Claims I & V: Religious Discrimination – Disparate Treatment (Title VII and FEHA)
Sunrise moves for summary judgment on plaintiff’s first and fifth claims for “Religious
Discrimination – Disparate Treatment” under Title VII and FEHA. Dkt. No. 155 at 14-16.
Plaintiff’s first and fifth claims specifically allege that Sunrise “subjected him to adverse
employment actions by threatening to terminate his employment if he did not change his religious
beliefs” and by terminating Hunt’s employment “because of his religion.” TAC ¶¶ 68, 69, 119, 120.
Sunrise argues that the LOU requiring plaintiff to be vaccinated was a facially neutral
vaccine mandate that applied equally to all Sunrise employees who were members of plaintiff’s
union regardless of their religion. Dkt. No. 155. at 14-15. Sunrise contends that plaintiff has not
shown that Sunrise’s policy requiring Covid-19 vaccinations was motivated by any discriminatory
intent or was pretext for discrimination. Id. at 15. Further, Sunrise asserts that plaintiff has failed
to provide evidence that any other members of his union governed by the LOU continued to work
on Sunrise vessels while unvaccinated. Id. at 15-16.
Disparate treatment occurs “where an employer has treated a particular person less favorably
than others because of a protected trait.” Ricci v. DeStefano, 557 U.S. 557, 577 (2005). “A
disparate-treatment plaintiff must establish that the defendant had a discriminatory intent or motive
for taking a job-related action.” Id. “[W]hen responding to a summary judgment motion,” a Title
VII11 plaintiff “is presented with a choice regarding how to establish his or her case.” McGinest v.
GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004).
Under the first path, the plaintiff may “simply produce direct or circumstantial evidence
demonstrating that a discriminatory reason more likely than not motivated” the employer and that
11 The same legal standards apply to disparate treatment claims brought under Title VII and
FEHA. See Godwin v. Hunt Wesson, 150 F.3d 1217, 1219 (9th Cir. 1998) (“Because California law
under the FEHA mirrors federal law under Title VII, federal cases are instructive.”), citing Bradley
v. Harcourt, Brace and Co., 104 F.3d 267, 271 (9th Cir. 1996) (“California relies on federal
discrimination decisions to interpret the FEHA.”).
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the employer’s actions adversely affected plaintiff in some way. Id. Alternatively, the plaintiff may
rely on the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973). A plaintiff alleging disparate treatment makes out a prima facie
case under McDonnell Douglas by showing: (1) he is a member of a protected class; (2) he was
qualified for his position; (3) he experienced an adverse employment action; and (4) similarly
situated individuals outside his protected class were treated more favorably or other circumstances
surrounding the adverse employment action give rise to an inference of discrimination. Id. at 1155;
see also Lui v. DeDoy, 129 F.4th 770, 778 (9th Cir. 2025) (clarifying that “the fourth element of the
McDonnell-Douglas prima facie test . . . requir[es] only that the adverse action occurred under
circumstances giving rise to an inference of discrimination.” (cleaned up)). At summary judgment,
the degree of proof necessary to establish a prima facie case is “minimal and does not even need to
rise to the level of a preponderance of the evidence.” Lyons v. England, 307 F.3d 1092, 1112 (9th
Cir. 2002) (internal quotation marks and citation omitted); see also Opara v. Yellen, 57 F.4th 709,
723-24 (9th Cir. 2023). If the plaintiff makes out a prima facie case under McDonnell-Douglas,
“the defendant bears the burden of producing a neutral explanation for its action, after which the
plaintiff may challenge that explanation as pretextual.” Damiano v. Grants Pass Sch. Dist. No. 7,
140 F.4th 1117, 1154 (9th Cir. 2025) (citation omitted).
Here, plaintiff pursues the first path to defeat summary judgment by pointing to “direct or
circumstantial evidence” demonstrating that a discriminatory reason more likely than not motivated
the employer. Dkt. No. 173 at 20-21; see McGinest, 360 F.3d at 1122. As direct evidence, plaintiff
relies primarily on Washburn’s statement at the December 8, 2021 meeting with plaintiff and MEBA
representative Cimini, as corroborated by Cimini’s deposition testimony, that Washburn “hoped Mr.
Hunt would change his religious beliefs.” Cherne Decl. ¶¶ 7, 9; Cimini Depo. at 140:1-13; Hunt
Depo. at 213:4-6; see Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005) (“Direct
evidence typically consists of clearly sexist, racist, or similarly discriminatory statements or actions
by the employer.”); Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1038 (9th Cir. 2005)
(“Direct evidence is evidence, which, if believed, proves the fact [of discriminatory animus] without
inference or presumption.”) (citation and internal quotation marks omitted). Plaintiff also testified
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that Washburn repeated this comment at a second meeting on December 20, 2021. Hunt Depo. at
256:10-12, 257:1-9.12 As circumstantial evidence, plaintiff points to Washburn’s alleged refusal to
consider any accommodations from the outset of the process.
Sunrise does not address the “direct or circumstantial evidence” path to establishing
disparate treatment. Instead, Sunrise devotes the entirety of its briefing to the path plaintiff did not
choose – the McDonnell-Douglas burden shifting analysis. See Mot. at 14-15; Reply at 2-14.13
Moreover, Sunrise paints the adverse employment action plaintiff challenges as the LOU’s
vaccination requirement, but plaintiff alleges that Sunrise’s adverse employment action was
“threatening to terminate [plaintiff’s] employment if he did not change his religious beliefs” and
terminating Hunt’s employment “because of his religion.” Compare id. with TAC ¶¶ 68, 69, 119,
120.
Washburn’s purported comments are barely mentioned in Sunrise’s briefing. Sunrise asserts
only that Mr. Washburn’s comments were “mere thoughts or passing statements unrelated to the
disputed employment decision” and thus insufficient to show that discrimination was a substantial
motivating factor under FEHA. See Dkt. No. 196 at 9. (quoting Harris v. City of Santa Monica, 56
Cal. 4th 203, 232 (2013)). However, Washburn’s comments plainly related to the disputed
employment decision at issue.14 Here, plaintiff presents evidence that Washburn authored the denial
12 Plaintiff also relies on the Molinaro Declaration (Dkt. No. 172) to argue that statements
or beliefs attributed to Pasha President and CEO, George Pasha, constitute direct evidence of
animus. Dkt. No. 173 at 20. However, as discussed in the evidentiary objections section, supra, the
Molinaro Declaration speculates about George Pasha’s beliefs but does not indicate that George
Pasha ever “stated” anything at all and is of dubious value.
13 In responding to Sunrise’s arguments under the McDonnell-Douglas framework, plaintiff
argues he has presented evidence that Sunrise did allow other unvaccinated persons to work onboard
its vessels and that, regardless, the Ninth Circuit does not require a plaintiff to identify a comparator
in every disparate treatment case. Dkt. No. 173 at 20-21. The Court agrees that a plaintiff is not
required to identify a comparator in every disparate treatment case. See Pac. Shores Props., LLC v.
City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013) (“Our cases clearly establish that
plaintiffs who allege disparate treatment under statutory anti-discrimination laws need not
demonstrate the existence of a similarly situated entity who or which was treated better than the
plaintiffs in order to prevail.”).
14 This Court acknowledges that the Ninth Circuit has upheld lower court determinations
that comments by supervisors are insufficient to show evidence of discriminatory intent where, with
another inferential step, the comments might indicate religious animus but more likely indicate an
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of plaintiff’s religious exemption request finding plaintiff unfit for duty and made an unprofessional
comment explicitly expressing a hope that plaintiff would change his religion during those
proceedings. See Dominguez-Curry, 424 F.3d at 1038 (“Where a decisionmaker makes a
discriminatory remark against a member of the plaintiff’s class, a reasonable factfinder may
conclude that discriminatory animus played a role in the challenged decision.”); Brown v. Alaska
Airlines, Inc., 179 F.4th 707, 721 (9th Cir. 2026) (“[i]n view of [defendant’s] involvement in the
investigatory and disciplinary process, the arguably disparaging statements that allude to a protected
ground support an inference of discrimination”).
Therefore, the Court finds that plaintiff’s evidence of Washburn’s comment that he hoped
plaintiff would change his religion, as corroborated by Cimini, is direct evidence of animus which
creates a triable issue of fact. See Godwin v. Hunt Wesson, 150 F.3d 1217, 1221 (9th Cir. 1998))
(direct evidence of animus creates a triable issue “even if the evidence is not substantial”). Indeed,
at the hearing, counsel for Sunrise confirmed that what Washburn said to plaintiff is a disputed
factual issue. In sum, the Court DENIES Sunrise’s motion for summary judgment on plaintiff’s
disparate treatment claims.
IV. Claims II & VI: Religious Discrimination – Failure to Accommodate (Title VII and
FEHA)
Sunrise moves for summary judgment on plaintiff’s failure to accommodate claims. Dkt.
No. 155. Plaintiff cross-moves for partial summary judgment against Sunrise as to establish his
prima facie case of Sunrise’s failure to accommodate his religious beliefs. Dkt. No. 154.
attempt to enforce a neutral policy. See Cross v. Cent. Contra Costa Transit Auth., No. 21-CV-
01312-JST, 2024 WL 6979681, at *3-4 (N.D. Cal. Sept. 3, 2024), aff’d, No. 24-6068, 2026 WL
92280, at *1 (9th Cir. Jan. 13, 2026) (finding statements by supervisor that plaintiff could not wear
a hijab merely to be enforcing a no headwear dress code and not direct evidence of animus against
the Muslim religion). However, this case is distinguishable because plaintiff presents evidence of a
comment aimed explicitly at plaintiff’s religion.
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A. Prima Facie Case
To establish religious discrimination on the basis of a failure to accommodate theory under
Title VII or FEHA, a plaintiff must first set forth a prima facie case that “(1) he had a bona fide
religious belief, the practice of which conflicts with an employment duty; (2) he informed his
employer of the belief and conflict; and (3) the employer discharged, threatened, or otherwise
subjected him to an adverse employment action because of his inability to fulfill the job
requirement.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004) (citing Heller v.
EBB Auto. Co., 8 F.3d 1433, 1438 (9th Cir. 1993)).
Sunrise disputes whether plaintiff had a sincerely held religious belief that conflicted with
Sunrise’s Covid-19 vaccine requirement and whether plaintiff was subjected to an adverse
employment action. Dkt. No. 170. It is undisputed that plaintiff informed Sunrise of his religious
belief. Id. at 4, n.1.
1. Sincerely Held Religious Belief
In support of summary adjudication as to plaintiff’s sincerely held religious beliefs, plaintiff
offers his own deposition testimony that he has been an Orthodox Christian and has identified as
such every day of his life since he was 10 years old. Dkt. No. 154-6 (“Hunt Depo.”) at 43:6-25.
Plaintiff further testified that his religious belief against abortion conflicted with getting the Covid-
19 vaccination because he believes “there were actual fetal cells used in the vaccine” and that “God
designed me for his purposes, so … these vaccines … created changes to God’s plan.” Id. at 233:19-
234:9. Plaintiff’s November 5, 2021, request for religious exemption to the Covid-19 exemption
similarly explained that plaintiff believes that aborted fetal cells were used in the creation of Covid-
19 vaccines and that Covid-19 vaccines would change his genetic makeup. Dkt. No. 154-4 at 19-
36 (ECF pagination).
Plaintiff further argues that Sunrise already recognized that plaintiff’s religious beliefs were
sincere in Fleet Superintendent Captain Greg Johnson’s November 9, 2021 letter responding to
plaintiff’s request for a religious exemption. Dkt. No. 154-4 at 38 (ECF pagination) (“We recognize
that you have sincerely held religious beliefs that you feel would be violated were you to get a
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vaccine for Covid-19. Although Sunrise Operations is willing to provide you with an
accommodation on the basis of your sincerely held religious beliefs, our options to grant such an
exemption are restricted . . .”). Washburn and Johnson also testified during their depositions that
they did not disbelieve plaintiff’s sincerity. Dkt. No. 154-2 at 227:5-228:24; Dkt. No. 154-5
(“Johnson Depo.”) at 148:8-14; 149:1-10).
The Court acknowledges that its limited “task is to decide whether the beliefs professed by
[plaintiff] are sincerely held and whether they are, in his own scheme of things, religious.” U.S. v.
Seeger, 380 U.S. 163, 185 (1965). A plaintiff’s “religious belief need not be consistent or rational
to be protected under Title VII, and an assertion of a sincere religious belief is generally accepted.”
Keene v. City & Cnty. of San Francisco, No. 22-16567, 2023 WL 3451687, at *2 (9th Cir. May 15,
2023). The Ninth Circuit has stated that we “may not and do not question the legitimacy of
[plaintiff’s] religious beliefs regarding COVID-19 vaccinations.” Doe v. San Diego Unified Sch.
Dist., 19 F.4th 1173, 1176 n.3 (9th Cir. 2021). However, “[t]his principle does not mean that courts
must take plaintiffs’ conclusory assertions of violations of their religious beliefs at face value.”
Bolden-Hardge v. Office of California State Controller, 63 F.4th 1215, 1223 (9th Cir. 2023): see
also, Detwiler v. Mid-Columbia Med. Ctr., 156 F.4th 886, 889-900 (9th Cir. 2025) (holding
plaintiff’s “references to prayer and a broad belief that her body is a temple” did not render her
secular beliefs about nasal swabs in antigen tests religious).
The Court agrees with Sunrise that the religiosity and sincerity of plaintiff’s beliefs is a jury
question. Plaintiff submits his own self-serving testimony to establish his religious beliefs.15
Sunrise points to evidence that may cast doubt on plaintiff’s beliefs. For instance, Sunrise argues
that plaintiff’s “cut and paste explanation” of his religious beliefs from the internet provided in his
15 The Court notes plaintiff also filed a statement of recent decision bringing the Court’s
attention to the case Weiss v. The Permanent Medical Group, Inc., No. 24-6609, 2026 WL 2131748
(9th Cir. July 24, 2026) to support his motion for partial summary judgment. Dkt. No. 207. In
Weiss, the Ninth Circuit reversed the district court’s decision to grant an employer’s motion to
dismiss for failure to state a claim. This Court has reviewed the case and finds it unhelpful to its
analysis. Unlike in Weiss, here the employer’s notice of the conflict is undisputed and this Court
considers plaintiff’s bona fide religious belief on a motion for summary judgment not a motion to
dismiss.
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request for religious exemption demonstrates that plaintiff “went shopping for a religion online” so
that he could avoid the vaccine “for secular reasons.” Dkt. No. 170 at 5, 7-8; Dkt. No. 170-2.
Sunrise also provides plaintiff’s interrogatory responses which mention various churches plaintiff
attended during his life but do not mention plaintiff’s involvement in any “Orthodox” Christian
churches. Dkt. No. 170-7; 170-8. Further, in response to one such interrogatory asking plaintiff to
identify any religious institutions he attended during his employment with Sunrise, plaintiff
identified only the “Highlands Vine (sic) Church” pastored by Mike and Beth Bricker. Dkt. No.
170-8 at 8. When deposed by defendants, Pastor Mike Bricker testified that plaintiff was not a
member of his church (his church “technically” had no members); that plaintiff had only attended
his church five or six times; that his church did not take a position one way or another on the Covid-
19 vaccine16; that his church was not “Orthodox”; and that plaintiff did not seek religious advice
from him, including about the Covid-19 vaccine. Dkt. No. 170-9 (“Bricker Depo.”) at 11:10-13:4,
16:19-17:19. Nor does the Court find that Sunrise has waived its ability to contest this element of
plaintiff’s prima facie case because Washburn and Johnson did not dispute the sincerity of plaintiff’s
beliefs in denying his religious exemption request.
For the Court to determine that plaintiff’s beliefs are religious and sincere, it would need to
subjectively determine plaintiff’s credibility and state of mind. A rational jury could find plaintiff
did not have a sincerely held religious belief that conflicted with Sunrise’s vaccine mandate. The
Court DENIES plaintiff’s motion for summary judgment as to this element of plaintiff’s prima facie
case.
2. Adverse Employment Action
Plaintiff argues that he has established that Sunrise subjected him to an adverse employment
action because Sunrise told plaintiff he would lose his position as a permanent officer and no longer
be able to sail on Sunrise vessels if he did not become fully vaccinated in its November 9, 2021
16 Pastor Bricker also testified the following: “Q: Did you or your wife ever preach to your
parishioners that they should not get the Covid vaccine for religious religions? A: No. We may very
well have discussed some concerns we had regarding fetal cell lines being used, but we would not
have advised people not to get it. We would want them to make an informed decision, but we aren’t
going to advise them one way or another.” Id. at 17:7-14.
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letter. Dkt. No. 154 at 13; see Dkt. No. 154-4 at 38 (ECF pagination). Sunrise counters that a
question of material fact remains because, though plaintiff was deemed “unfit for duty” under the
CBA and was unable to sail, he was never officially terminated. Dkt. No. 170 at 6. According to
Sunrise, plaintiff sought other employment through his union and then resigned. Id.
The Court agrees with plaintiff that losing the ability to maintain a permanent rotation is
plainly an adverse employment consequence that directly affected the terms and conditions of
plaintiff’s work. See Dkt. No. 154 at 14. Regardless of when or how plaintiff was ultimately
terminated, it is undisputed that plaintiff was found unfit for duty and could no longer sail for
Sunrise. The Court is not persuaded by the three authorities Sunrise relies on for the general
proposition that a voluntary resignation is not an adverse employment action, because here there is
nothing on the record that demonstrates that plaintiff voluntarily resigned. See Hammon v. DHL
Airways, Inc., 165 F.3d 441 450 (6th Cir. 1999); Hwang v. Nat’l Tech. & Eng’g Sols Of Sandia,
LLC, No. 20-CV-08551-SK, 2022 WL 3566444 (N.D. Cal. Aug. 18, 2022), aff'd, No. 22-16396,
2024 WL 208139 (9th Cir. Jan. 19, 2024); Featherstone v. Southern California Permanent Medical
Group, 10. Cal.App.5th 1150, 1161 (2017). Accordingly, the Court GRANTS plaintiff’s motion
for summary judgment as to this element of plaintiff’s prima facie case.
In sum, the Court GRANTS in part and DENIES in part plaintiff’s motion for partial
summary judgment.
B. Employer’s Defenses
Once the plaintiff has established a prima facie case, the burden shifts to the employer to
show that it “initiated good faith efforts to accommodate reasonably the employee’s religious
practices or that it could not reasonably accommodate the employee without undue hardship.”
Peterson, 358 F.3d at 606. (internal citation and quotation marks omitted). Sunrise barely attempts
to argue that it has established undisputed evidence of a good faith interactive accommodation
process, nor could it based on the on the record before the Court. As discussed below, the Court
also finds that factual issues remain as to Sunrise’s undue burden defense.
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The undue hardship analysis requires “context-specific application.” Groff v. DeJoy, 600
U.S. 447, 473, 143 S.Ct. 2279, 216 L.Ed.2d 1041 (2023). A religious accommodation poses an
“undue hardship” when the accommodation “would result in substantial increased costs in relation
to the conduct of [the employer’s] particular business.” Id. at 470. “[C]ourts must apply the test in
a manner that takes into account all relevant factors in the case at hand, including the particular
accommodations at issue and their practical impact in light of the nature, size and operating cost of
an employer.” Id. at 470-471 (cleaned up). The Ninth Circuit has considered “(1) health and safety
costs, (2) operational burdens, and (3) financial burdens” to determine whether a defendant faced
an undue hardship by accommodating a plaintiff’s request for a religious exemption from the Covid-
19 vaccine. Petersen v. Snohomish Reg'l Fire & Rescue, 150 F.4th 1211, 1218 (9th Cir. 2025).
“[W]hen considering undue hardship in the context of COVID, employers should consider if the
employee works in a solitary or group work setting, has close contact with other employees or
members of the public, and works outdoors or indoors.” Id. at 1220 (internal quotation marks and
citation omitted).
Sunrise argues it was impossible for plaintiff to perform his job as an engineer remotely
because he was required to lead the ship’s engineering department of approximately 12 officers and
crew and to perform maintenance and repair work, such that he must work and live aboard the ship.
Dkt. No. 153-1 ¶ 3. While the Chief Engineer had a private office and cabin, he was still required
to do hands-on work and interact with the crew. Id. ¶¶ 5-9.
Sunrise also presents evidence of the health and safety costs that having unvaccinated crew
members at sea could pose. Washburn’s declaration explains that a ship is a unique context “nothing
like a house ashore” because doors and windows are generally closed for safety, the same air
circulates throughout the ship, and crew are confined to common spaces, making social distancing
impracticable. Id. ¶¶ 6-8. Further, while transiting at sea to and from Hawaii, the ship is regularly
beyond range of medical attention or even evacuation by helicopter. Id. ¶ 36. Sunrise’s retained
expert, Dr. Brian Bourgeois, M.D., provides a declaration explaining that requiring Covid-19
vaccinations for those working in close quarters on an oceangoing vessel was the most effective
means of preventing Covid-19 infection. Dkt. No. 153-4. Sunrise also presents evidence that under
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the LOU between plaintiff’s union and Sunrise, plaintiff’s coworkers were entitled to work with
vaccinated shipmates. Dkt. No. 153-1 ¶ 35; Dkt. No. 153-2.
Additionally, Sunrise presents evidence of considerable operational and financial burdens it
would incur by accommodating plaintiff. Sunrise asserts that infections of Covid-19 would cause
Sunrise to incur substantial costs for employee’s medical treatments because Sunrise is responsible
for providing “maintenance and cure” to seamen under federal maritime law. Id. ¶¶ 37-38. In
addition to medical costs Sunrise would incur, Sunrise asserts it would incur “dockage fees” caused
by delays at berth, as well as costs associated with loss of perishable food cargo that would become
worthless if not delivered on time and the costs of providing food, electricity, and pay if the crew
was quarantined at dock. Id. ¶¶ 37-38. Sunrise provides a declaration of its expert, Richard Timme,
explaining the CDC’s three options for vessel operators when Covid-19 was detected on a ship (crew
change out, 14-day working quarantine, or temporarily discontinue operations) and the significant
practical and operational hurdles these guidelines presented for ships with confirmed Covid-19
cases. Dkt. No. 153-5. Timme presents evidence that, as of September 23, 2021, ships with 100%
fully vaccinated crew were exempt from these three options, thus avoiding these significant costs.
Id. Sunrise also provides the report of a forensic accountant who calculated the financial costs of
an actual July 2020 incident where a crew member on one of Sunrise’s ships tested positive for
Covid-19 while at sea, as well as potential costs to Sunrise had it experienced another Covid-19
outbreak at sea in 2021. Dkt. Nos. 196-1, 196-2.
Plaintiff cites a sentence from Sunrise’s leading authority to suggest the hardships Sunrise
would suffer if plaintiff became positive with Covid-19 while at sea are too speculative. Dkt. No.
173 at 19-20; see Petersen, 150 F.4th at 1221 (9th Cir. 2025) (“In general, we consider only actual
hardships, not hypothetical ones when assessing undue hardship.”). However, “an employer need
not establish that an adverse health or safety event is certain to result from an accommodation to
establish undue hardship under Title VII.” Bordeaux v. Lions Gate Ent., Inc., No. 23-4340, 2025
WL 655065, at * 2 (9th Cir. Feb. 28, 2025) (citing See Bhatia v. Chevron U.S.A., Inc., 734 F.2d
1382, 1383-84 (9th Cir. 1984)) (per curiam). Thus, plaintiff’s argument that Sunrise’s undue
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hardship is too speculative is not well taken, and the Court finds that Sunrise presents compelling
evidence of financial burden.17
With this said, plaintiff provides sufficient evidence to create material disputes as to whether
accommodating plaintiff would have been an undue burden on Sunrise. Plaintiff testified that his
ability to perform his duties as Chief Engineer would not be heavily impacted if he had to quarantine
in his stateroom. Washburn testified that Sunrise did not seek medical advice as to whether a single
unvaccinated crew member working unvaccinated would pose a risk to other crew members.
Plaintiff relies on testimony that other workers such as vendors, longshoremen, and pilots were not
required to be vaccinated. Plaintiff’s rebuttal expert Dr. Mina suggests that “layered mitigation –
including pre-boarding testing, day-of testing, serial testing, masking or respirator use . . . etc.” could
reduce Hunt’s transmission risk to a level comparable to or even lower than vaccinated but untested
crew members. Dkt. No. 173-3. Plaintiff’s rebuttal expert Captain Arthur J. Weis opines that
replacing a single unvaccinated crew member under CDC’s Option # 1 (as amended in September
2021) would not be an operational catastrophe or present an undue burden. Dkt No. 173-4. Indeed,
plaintiff provides evidence that crew changeouts were a regular occurrence aboard Sunrise vessels.
Taken as true, these and other factual issues preclude summary adjudication.
While Petersen affirmed the district court’s summary judgment decision in favor of the
employer on the issue of undue burden in the Covid-19 context, the Court agrees with plaintiff that
this case is distinguishable. In Petersen, the Ninth Circuit explained that plaintiffs’ assertions that
they were able to safely perform their job without vaccinations were unsupported by any medical
evidence. See 150 F.4th 1211 at 1220 (“The objective, unrebutted medical evidence shows that
[defendant] would have faced significant health and safety costs by allowing unvaccinated
firefighters to continue working, even with accommodations.”). Petersen cautions courts against
judging defendants “with the clarity of hindsight or the benefit of post-pandemic debates over what
17 In its reply brief, Sunrise relies on Hall v. Sheppard Pratt Health Sys., 155 F.4th 747, 753-
54 (4th Cir. 2025) to argue that the possibility of a single unvaccinated individual getting others sick
is a non-speculative risk that supports a finding of undue hardship in the Covid-19 context. Dkt.
No. 196 at 4-5. Sunrise miscites this case as Ninth Circuit precedent, but the Court notes it is a
Fourth Circuit opinion. See Dkt. No. 196 at 5, n. 12.
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measured responses frontline employers should have taken.” Id. at 1222; see also Williams v.
Legacy Health, 174 F.4th 1201, 1206 (9th Cir. 2026) (considering what evidence was available to
the employer at the time to determine if the undue hardship standard was satisfied). Here, however,
Sunrise’s evidence of health and safety and operational costs is controverted by both lay and expert
testimony based on information that may have been available to Sunrise at the time of its decision
to deny plaintiff’s religious accommodation request.
The Court has also reviewed the Ninth Circuit’s recent decisions in Duden v. State of
Washington, No. 25-724, 2026 WL 2334324 (9th Cir. Aug. 12, 2026) and Nilsen v. University of
Washington, No. 24-7460, 2026 WL 2352904 (9th Cir. Aug. 13, 2026). In each case the Ninth
Circuit upheld the district court’s grant of summary judgment on a defendant’s undue hardship
defense in the Covid-19 vaccination context. The Court finds each case to be distinguishable from
the present case, both in terms of context and in terms of the amount of disputed evidence. In Duden,
the Ninth Circuit reasoned that plaintiff did not rebut the Department of Correction’s evidence that
plaintiff’s job teaching inmates at a high-security prison required in person administration, that it
received approximately 600 requests for religious exemptions, or that Covid-19 infections rates
among staff increased significantly in the months leading up to the vaccine mandate. Here, Sunrise
received at most 2 requests for religious exemptions and plaintiff disputes how much in person
contact was required to perform his job. In Nilsen, the Ninth Circuit found that an expert report
regarding prevention of Covid-19 relying largely on data that was published after the disputed
accommodation decisions were made was insufficient to create a genuine dispute of material fact,
where defendants had relied on a special committee of medical experts from the University of
Washington Medical School to determine the risks of having unvaccinated medical employees in
healthcare facilities. Here, plaintiff’s experts rely on information that may have been available to
Sunrise at the time of its adverse employment decision. Furthermore, the prison and healthcare
contexts differ considerably from the context here.
Counsel for Sunrise argued at the hearing that the “extreme” setting of a ship counsels in
favor of an undue hardship finding. While the Court is sympathetic to Sunrise’s argument, the Court
finds that numerous factual disputes remain as to whether providing a single religious
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accommodation to the Covid-19 vaccine to plaintiff would have created an undue burden for Sunrise
in the unique context of the shipping industry. As such, the Court DENIES Sunrise’s motion for
summary judgment on plaintiff’s failure to accommodate claims.
V. Claims III & VII: Retaliation (Title VII and FEHA)
Sunrise moves for summary judgment on plaintiff’s third and seventh claims for
“Retaliation” under Title VII and FEHA. Dkt. No. 155 at 16-17. Plaintiff alleges that Hunt
“engaged in a protected activity by requesting religious accommodation not to receive the Covid-
19 vaccine” and that “defendants subjected Hunt to an adverse employment action by threatening
him with termination if he didn’t change his beliefs, and terminating his employment.” TAC ¶¶ 97,
98, 143, 144.
To determine retaliation claims brought under Title VII and FEHA, courts apply the
McDonnell Douglas burden-shifting framework. See Porter v. Cal. Dep’t of Corrs., 419 F.3d 885,
894 (9th Cir. 2004); Loggins v. Kaiser Permanent Int’l, 151 Cal. App. 4th 1102, 1108-09 (2007).
To make out a prima facie case of retaliation, plaintiff must show that: (1) he engaged in protected
activity, (2) his employer subjected him to an adverse employment action, and (3) a causal link
exists between the protected activity and the adverse action. Ray v. Henderson, 217 F.3d 1234,
1240 (9th Cir. 2000). If a plaintiff has asserted a prima facie retaliation claim, the burden shifts to
the defendant to articulate a legitimate nondiscriminatory reason for its decision. Id. at 1464-1465.
If the defendant articulates such a reason, the plaintiff bears the ultimate burden of demonstrating
that the reason was merely a pretext for a discriminatory motive. Id.
Sunrise does not appear to dispute that plaintiff has established the first two elements of his
retaliation claim. Rather, Sunrise argues that plaintiff cannot establish causation where a vaccine
mandate is neutrally imposed and clearly states termination is a consequence of failing to comply
with the mandate. Dkt. No. 155 at 17. Sunrise is correct that “[s]everal courts have found that a
plaintiff cannot establish causation where a vaccine mandate is neutrally imposed and clearly states
that termination is a consequence of failing to comply with the mandate.” Allbright v. S. California
Permanente Med. Grp. Inc., 793 F. Supp. 3d 1214 (C.D. Cal. 2025), appeal dismissed sub
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nom. Allbright v. S. California Permanente Med. Grp., No. 25-5426, 2025 WL 4354257 (9th Cir.
Dec. 29, 2025) (collecting cases). However, Allbright and the collected cases it refers to differ from
the present case because, here, plaintiff points to an explicit discriminatory statement by his
employer.
Both in its briefing and at the hearing, Sunrise takes the position that plaintiff’s evidence
regarding Washburn’s statements at his December 8 and 20, 2021 meetings with Washburn cannot
be evidence of pretext because they occurred long after the overarching vaccination policy was
established by the LOU and “after the employment decision had been made, which for [p]laintiff,
occurred in November 20[21].” 18 Dkt. No. 196 at 9. The Court disagrees. The general vaccination
policy is not at issue, rather plaintiff challenges Sunrise’s treatment of his individual request for
religious exemption. It is true that Sunrise initially sent plaintiff a letter denying his request for
religious exemption on November 9, 2021. Dkt. No. 154-4. However, the final determination that
plaintiff was not fit for duty was not sent to plaintiff until February 7, 2022, after Washburn made a
statement suggesting plaintiff should change his religious beliefs and refused to consider plaintiff’s
various accommodation proposals. See Dkt. No. 174-4. Viewed in the light most favorable to
plaintiff, a reasonable jury could find that Sunrise retaliated against plaintiff because he did not
change his religious beliefs, as Washburn explicitly requested.
Thus, the Court DENIES Sunrise’s motion for summary judgment on plaintiff’s retaliation
claims.
VI. Claim IV: Religious Coercion – Harassment (Title VII)
Sunrise moves for summary judgment on plaintiff’s fourth claim for religious harassment
under Title VII. Dkt. No. 155 at 17-18. The parties agree that there are two theories of
discrimination in the form of harassment: quid pro quo or hostile work environment. See Brooks v.
City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (discussing sexual harassment under Title
18 Sunrise’s briefing states that the date of the relevant employment decision was November
2022. The court assumes this was in error and that Sunrise is referring to the initial letter denying
plaintiff’s request for exemption dated November 9, 2021.
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VII). In the sexual harassment context, a quid pro quo claim under Title VII arises “when a
supervisor demands sexual favors in return for a job benefit.” Brooks v. City of San Mateo, 229
F.3d 917, 923 (9th Cir. 2000) (discussing sexual harassment under Title VII). In a recent
unpublished decision, the Ninth Circuit stated in a footnote that “the theory of quid pro quo
harassment in the context of religious discrimination . . . essentially occurs ‘when a supervisor
demands that an employee alter or renounce some religious belief in exchange for job benefits.’”
Cross v. Cent. Contra Costa Transit Auth., No. 24-6068, 2026 WL 92280, at *3 n.1 (9th Cir. Jan.
13, 2026) (quoting Weiss v. United States, 595 F. Supp. 1050, 1056 (E.D. Va. 1984) (citing Katz v.
Dole, 709 F.2d 251 (4th Cir. 1983))).
Sunrise argues that plaintiff has no evidence to support any intent or animus against his
religion to support a quid pro quo theory. Id .19 The Court disagrees, finding that this claim also
turns on evidence that Washburn told plaintiff he hoped he would change his religion, suggesting a
representative for defendants told plaintiff point blank that he hoped plaintiff would change his
religious beliefs so that plaintiff would not be terminated. Plaintiff’s union representative has
corroborated one of these incidents. A jury could conclude this was a demand in exchange for job
benefits. Accordingly, this case is distinguishable from Judge Tigar’s recent decision granting
summary judgment in favor of an employer charged with religious discrimination. See Cross v.
Cent. Contra Costa Transit Auth., No. 21-cv-01312-JST, 2024 WL 6979681, at *6 n.4 (N.D. Cal.
Sept. 3, 2024), aff’d, No. 24-6068, 2026 WL 92280 (9th Cir. Jan. 13, 2026). There, the employer
granted the plaintiff’s request for a religious exemption from the employer’s uniform policy so she
could wear a hijab at work, and no evidence suggested that the plaintiff’s employment was
conditioned on her not wearing a hijab. Id.
However, the Court does find that plaintiff’s hostile workplace theory cannot survive
19 Sunrise also argues that there is no authority establishing that quid pro quo religious
harassment is a viable legal theory of recovery in the Ninth Circuit. Dkt. No. 155 at 17-18. While
Sunrise is correct that the Ninth Circuit has not expressly recognized a quid pro quo theory of Title
VII harassment in the religious context, neither has the Ninth Circuit disavowed it. The Court
incorporates by reference its discussion in its order denying defendants’ motion for judgment on the
pleadings. Dkt. No. 203 at 2-6.
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summary judgment based on the record before the Court. To prevail on a hostile work environment
claim, plaintiff must establish that the workplace was permeated with “discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Harris v. Forklift Systems, Inc, 510 U.S.
17, 21 (1993). Here, no reasonable jury could conclude that plaintiff was subjected to a hostile work
environment because two offhand comments do not constitute pervasive or severe conduct, and
plaintiff neither alleges nor provides evidence of any other pervasive or severe harassing conduct.
Therefore, the Court DENIES Sunrise’s motion for summary judgment as to plaintiff’s quid
pro quo religious harassment claim, but GRANTS it as to plaintiff’s hostile work environment
claim.
VII. Punitive Damages
Sunrise moves for summary judgment on plaintiff’s request for punitive damages on his
Title VII claims. Dkt. No. 155 at 19-20. Under Title VII, as amended, a plaintiff may recover
punitive damages where an employer has acted with “malice or reckless indifference to the federally
protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). As the Supreme Court
explained in Kolstad v. American Dental Association, the reckless indifference standard requires
that “an employer must at least discriminate in the face of a perceived risk that its actions will violate
federal law to be liable in punitive damages.” 527 U.S. 526, 536, 119 S.Ct. 2118, 144 L.Ed.2d 494
(1999).
Sunrise argues that plaintiff cannot demonstrate by clear and convincing evidence that
defendant engaged in a discriminatory practice with malice or recklessness. Dkt. No. 155 at 19.
Sunrise contends that its vaccination policy was to protect employees from danger and that it
“carefully considered” plaintiff’s request for religious accommodation. Id. at 19-20. However,
given Washburn’s comment and the record before the Court, a reasonable jury could find Sunrise’s
conduct to demonstrate malice or recklessness. The Court therefore DENIES Sunrise’s motion for
summary judgment on the issue of punitive damages.
VIII. Defendant Pasha’s Motion for Summary Judgment
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Defendant Pasha moves for summary judgment as to all of plaintiff’s claims on the grounds
that Pasha is a parent corporation of Sunrise that never employed plaintiff. Dkt. No. 152 at 2.
Liability under Title VII and FEHA depends on the existence of an employment relationship. See
42 U.S.C. § 2000e-2(a); Cal. Gov’t Code § 12940; U.S. Equal Emp. Opportunity Comm’n v. Glob.
Horizons, Inc., 915 F.3d 631, 637 (9th Cir. 2019); Vernon v. State of California, 116 Cal. App. 4th
114, 123 (2004).
Title VII “recognizes that two entities may simultaneously share control over the terms and
conditions of employment, such that both should be liable for discrimination relating to those terms
and conditions.” Global Horizons, 915 F.3d at 637. In Global Horizons, the Ninth Circuit adopted
a common-law agency test to determine whether an entity is a joint employer under Title VII. Id.
at 638-39. The “‘principal guidepost’ is the element of control—that is, ‘the extent of control that
one may exercise over the details of the work of the other.’” Id. at 638 (quoting Clackamas
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 448 (2003)). A district court is to
consider a non-exhaustive list of factors to determine whether control exists:
the skill required; the source of the instrumentalities and tools; the
location of the work; the duration of the relationship between the
parties; whether the hiring party has the right to assign additional
projects to the hired party; the extent of the hired party’s discretion
over when and how long to work; the method of payment; the hired
party’s role in hiring and paying assistants; whether the work is part
of the regular business of the hiring party; whether the hiring party is
in business; the provision of employee benefits; and the tax treatment
of the hired party.
Id. (quoting Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)). “There
is ‘no shorthand formula’ for determining whether an employment relationship exists, so ‘all of the
incidents of the relationship must be assessed and weighed with no one factor being decisive.’” Id.
(quoting Darden, 503 U.S. at 324). However, “even if a joint-employment relationship exists, one
joint employer is not automatically liable for the actions of the other.” Id. at 641. “Liability may
be imposed for a co-employer’s discriminatory conduct only if the defendant employer knew or
should have known about the other employer’s conduct and failed to undertake prompt corrective
measures within its control.” Id. (internal quotation marks and citation omitted); see also, Watson
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v. Gulf & Western Industries, 650 F.2d 990, 993 (9th Cir. 1981) (“[i]n the absence of special
circumstances, a parent corporation is not liable for the Title VII violations of its wholly owned
subsidiary”).
FEHA requires some connection with an employment relationship, but “the connection need
not necessarily be direct.” Vernon, 116 Cal. App. 4th at 123. California courts have used various
tests to determine whether an employment relationship exists, but “[t]he common and prevailing
principle espoused in all of the tests directs [courts] to consider the ‘totality of the circumstances’
that reflect upon the nature of the work relationship of the parties, with emphasis upon the extent to
which the defendant controls the plaintiff’s performance of employment duties.” Id. at 124.
Pasha argues that it is not plaintiff’s joint employer because it does not hire, pay, or manage
plaintiff or any vessel crews. Dkt. No. 152 at 2; Dkt. No. 150-1 ¶ 5. As support, Pasha points to a
July 24, 2018 assignment letter assigning plaintiff to the position of Permanent Chief of Engineer
on the SS Horizon Pacific in July 2018. Dkt. No. 152-2, Ex. B. The assignment letter is on Sunrise
letterhead. Id. Pasha also argues that Sunrise, not Pasha, is party to collective bargaining
agreements with MEBA, which provide the terms of employment for engineers like plaintiff.
Plaintiff’s opposition does not fully dispute this. Plaintiff instead argues that the record does
not support Pasha’s “attempt to isolate Hunt’s employment within a single Sunrise ‘silo’” because
Pasha-affiliated entities and personnel participated in functions related to Hunt’s employment.
Plaintiff’s main argument is that a reasonable jury could find that Pasha participated in or influenced
the vaccination accommodation policy and decision at issue. Dkt. No. 192 at 7-8. Plaintiff relies
principally on testimony that Pasha handled all non-union exemption requests from Pasha’s
subsidiaries and on Pasha’s September 2021 vaccination policy for non-union employees. However,
it is undisputed that this policy did not apply to plaintiff.
Plaintiff also argues that Washburn’s possible participation on a companywide Covid-19
Strategic Response Team could show Pasha was involved in Hunt’s religious exemption request
denial. But the record does not reflect that the Strategic Response team had any hand in approving
or denying any employee request. Moreover, there is no evidence that Washburn participated in
those meetings, and deposition testimony from Washburn and the head of that committee indicate
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that he did not. Plaintiff also argues that the proximity of George Pasha’s office to Washburn’s
office suggests a joint employer relationship.
Plaintiff does not provide any other evidence that Pasha controlled plaintiff’s employment,
the key consideration under both FEHA and Title VII.20 Therefore, plaintiff does not present
evidence of control to create a factual dispute that Pasha may be Hunt’s joint employer. See
Anderson, 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence . . . will be
insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving
party].”)
Accordingly, the Court GRANTS summary judgment in favor of Pasha.
CONCLUSION
For the foregoing reasons and for good cause shown, the Court hereby GRANTS IN PART
and DENIES IN PART plaintiff’s motion for partial summary judgment on Claims II and VI. Dkt.
No. 154. The Court finds that plaintiff has established his prima facie case of Sunrise’s failure to
accommodate his religious beliefs as to the adverse employment action and notice elements, but not
as to the sincerely held religious belief element. The Court DENIES Sunrise’s motion for summary
judgment on all claims except plaintiff’s religious harassment/hostile work environment claim, as
to which summary judgment is GRANTED. The Court GRANTS Pasha’s motion for summary
judgment on all claims and dismisses Pasha from this case. The Court DENIES defendants’ motion
to exclude plaintiff’s expert Dr. Mina.
///
20 Plaintiff also relies on the Molinaro Declaration (Dkt. No. 172) to argue George Pasha
orchestrated Sunrise’s vaccination and accommodation policy. Dkt. No. 173 at 20. However, as
discussed in the evidentiary objections section, supra, the Court finds that the declaration alone
cannot create a material factual dispute as to whether Pasha jointly employed plaintiff.
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This case will proceed to trial. The pretrial conference is scheduled for September 22, 2026,
and trial is set to begin on October 5, 2026.
IT IS SO ORDERED.
Dated: August 21, 2026
SUSAN ILLSTON
United States District Judge
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