Witham v. Hershey Company, The

U.S. District Court, District of Minnesota September 5, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Christopher Witham, Case No. 23-CV-1563 (ECT/JFD)

Plaintiff,

v. ORDER

The Hershey Company,

Defendant.

This lawsuit involves Plaintiff Christopher Witham’s discrimination claims against
his former employer, Defendant The Hershey Company, resulting from the company’s
termination of his employment after it denied his request for a religious exemption from
its COVID-19 vaccine mandate. Before the Court are the parties’ cross-motions to compel
discovery (Dkt. Nos. 44, 50). The Court held a hearing on these motions on August 28,
2024, and now grants in part and denies in part the motions for the reasons set forth below.
I. Background
Mr. Witham was employed by Hershey for more than 11 years before his
termination on January 21, 2022. (Dkt. No. 24 at 2.) At the time of his dismissal,
Mr. Witham held the position of Omnichannel Integration Lead, a role to which he had
been promoted in June 2021. (Id.) When the COVID-19 pandemic hit, Hershey instructed
many of its employees, including Mr. Witham, to work remotely from home. (Id.) In 2020
and for most of 2021, Mr. Witham worked from his residence in Hennepin County,
Minnesota, but later moved to Polk County, Wisconsin, where he continued to work until
his termination. (Id.)
In August 2021, Hershey implemented a COVID-19 vaccination mandate for

employees in its Corporate Department, which included Mr. Witham. (Id.) The mandate
required the employees to receive one of the three vaccines available in the United States:
Johnson & Johnson, Moderna, or Pfizer. (Id. at 2–3.) These employees were expected to
be fully vaccinated by October 4, 2021, unless they were granted a religious or medical
exemption. (Id. at 3.) Non-vaccinated employees without religious or medical exemptions

were subject to termination. (Id.)
Mr. Witham sought a religious exemption from the vaccination mandate in
September 2021. (Id.) Under the section that required him to “describe the religious belief
or practice that necessitates this request for accommodation,” Mr. Witham stated as
follows:

I am a Roman Catholic Christian, and the Roman Catholic Church
teaches that a person may be required to refuse a medical intervention,
including a vaccination, if his or her informed conscience comes to this
sure judgment. While the Catholic Church does not prohibit the use of
any vaccine, and generally encourages the use of safe and effective
vaccines as a way of safeguarding personal and public health, the
following authoritative Church teachings demonstrate the principled
religious basis on which a Catholic may determine that he or she ought to
refuse certain vaccines:
• Vaccination is not morally obligatory in principle and so must be
voluntary.
• There is a general moral duty to refuse the use of medical products,
including certain vaccines, that are produced using human cells
lines derived from direct abortions. It is permissible to use such
vaccines only under certain case-specific conditions, based on a
judgment of conscience.
• A person’s informed judgments about the proportionality of
medical interventions are to be respected unless they contradict
authoritative Catholic moral teachings.
• A person is morally required to obey his or her sure conscience,
even if it errs.
(Dkt. No. 1-2 at 1 (footnotes omitted).) As an alternative to vaccination, Mr. Witham
proposed measures such as periodic testing, self-monitoring, and using personal protective
equipment. (Dkt. No. 24 at 3.)
Hershey denied Mr. Witham’s request for an exemption. (Id.) In its response,
Hershey explained:
We cannot provide a requested accommodation when it would create an
undue hardship. One of the ways that a request can pose an undue
hardship is when the proposed accommodation poses a health risk to the
individual or others. With respect to your specific request—to not get
vaccinated and still perform or be required to perform in-person work—
we have concluded that there is no accommodation available that would
enable you to continue to perform the essential functions of your job
without imposing undue hardship or risking the business partners, other
individuals working on or visiting our premises, and members of the
public. This is particularly true as your role requires you to work in close
contact with other individuals.
(Id. at 3–4.) Mr. Witham’s employment was terminated in January 2022 due to his refusal
to comply with the vaccine mandate. (Id.)
Subsequently, Mr. Witham filed this lawsuit alleging that Hershey’s refusal to
accommodate his religious beliefs constituted religious discrimination under Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e et seq., and the Minnesota Human Rights Act,
Minn. Stat. § 363A.08. (See generally Dkt. No. 1.)
In addition to the claim regarding the denial of his religious exemption, Mr. Witham
also believed his termination was influenced by his age, race, and sex as he is a 52-year-
old white male. (Dkt. No. 24 at 4.) He alleged that, during a senior leadership meeting in

2020, a Hershey corporate communications director remarked that there were “too many
old white guys” at the company and that Hershey’s culture was evolving. (Id.) Following
this meeting, Hershey disclosed that a survey included feedback suggesting that the
perspectives of “old, white guy” employees should not be considered while the company
pursued greater diversity. (Id.)

Thus Mr. Witham’s complaint also included, in addition to his claims for failure to
accommodate, other claims for: (i) discrimination and failure to accommodate under the
Americans with Disabilities Act,

42 U.S.C. § 12101

 et seq.; (ii) age discrimination under 
the  Age  Discrimination  in  Employment  Act,

29 U.S.C. § 621

et seq.; (iii) race
discrimination under Title VII; (iv) sex discrimination under Title VII; and (v) breach of

contract under unspecified common law. On Hershey’s motion pursuant to Federal Rule of
Civil Procedure 12(b), this Court dismissed these claims for failure to state a claim upon
which relief may be granted. (See generally Dkt. No. 24.) The only remaining claim is for
failure to accommodate.
The parties have since sought discovery from one another. At issue on their pending

cross-motions to compel are (i) Mr. Witham’s discovery into Hershey’s implementation
and application of the vaccine mandate (see generally Dkt. No. 50) and Hershey’s requests
for communications, social media activity, internet history, and documents relating to
Mr. Witham’s views on COVID-19 and COVID-19 vaccines (see generally Dkt. No. 44).
The Court addresses these issues in turn.
II. Legal Standards

Federal Rule of Civil Procedure 26 allows parties in litigation to “obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). In determining
proportionality, courts consider numerous factors, including “the importance of the issues
at stake in the action, the amount in controversy, the parties’ relative access to the relevant

information, the parties’ resources, and importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

Id.

                                                                       
   If a party believes that an opposing party has failed to respond to discovery, or has 
served  insufficient  responses,  it  may  “move  for  an  order  compelling  disclosure  or 

discovery.” Fed. R. Civ. P. 37(a)(1). A court may compel responses if a party fails to 
answer an interrogatory propounded under Rule 33 or to produce documents requested 
under Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv).1 For purposes of such a motion, “an 
evasive or incomplete disclosure, answer, or response must be treated as a failure to 
disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4).                  


1   A court, however, may not compel responses to requests for admission. See also Fed. 
R. Civ. P. 37(c)(2) (“If a party fails to admit what is requested under Rule 36 and if the 
requesting party later proves a document to be genuine or the matter true, the requesting 
party may move that the party who failed to admit pay the reasonable expenses, including 
attorney’s fees, incurred in making that proof.”). Thus, the Court does not consider the 
branch of Mr. Witham’s motion to compel that pertain to his requests for admissions. 
   A proper discovery response must either answer the request fully or state with 
specificity the grounds for objecting to the request. See Fed. R. Civ. P. 33(b), 34(b)(2). 
Objections must be stated with specificity and in relation to specific requests; any ground 

“not stated in a timely objection is waived unless the party’s failure to object is excused by 
the court for good cause.” Cargill, Inc. v. Ron Burge Trucking, Inc.,

284 F.R.D. 421, 424

 
(D. Minn. 2012). The party seeking discovery bears the initial responsibility for making a 
threshold showing of relevancy before the production of information is required. See, e.g., 
Hofer v. Mack Trucks, Inc.,

981 F.2d 377, 380

(8th Cir. 1992).

III. Analysis
A. Defendant’s Motion to Compel Production of Documents (Dkt. No. 44)
Hershey has sought discovery to assess the nature of Mr. Witham’s claimed
religious beliefs, including communications, social media activity, internet history, and
documents relating to his views on COVID-19 and COVID-19 vaccines. (See generally
Dkt. No. 46.) Mr. Witham objected to these requests, arguing that they are irrelevant, and

overly broad. (See generally Dkt. No. 61.)
a. Relevancy
Hershey asserts that the nature of Mr. Witham’s claimed religious beliefs is a
fundamental issue in the case and, thus, Hershey is entitled to discovery that probes
whether Mr. Witham can prove this critical element of his claim. In resisting the discovery,

Mr. Witham argues that he can have a failure-to-accommodate claim even if his objections
to the COVID-19 vaccines were not solely religious in nature and that neither Hershey nor
the Court is permitted to probe into the nature of his claimed religious beliefs. The Court
cannot accept Mr. Witham’s position here.
As the Court has made clear in its opinion on Hershey’s motion to dismiss

Mr. Witham’s complaint: “To establish a prima facie case of religious discrimination under
Title VII, a plaintiff eventually must show that he ‘(1) has a bona fide religious belief that
conflicts with an employment requirement, (2) informed the employer of such conflict, and
(3) suffered an adverse employment action.’” (Dkt. No. 24 at 6 (quoting Ollis v.
HearthStone Homes, Inc.,

495 F.3d 570, 575

 (8th Cir. 2007)).) This standard leaves no 

doubt that “a bona fide religious belief” is an essential element of Mr. Witham’s claim, one 
that he will have to prove at trial to recover on his claim. See id.; Tatum v. City of Berkeley,

408 F.3d 543

, 549–50 (8th Cir. 2005) (a plaintiff who “fails to establish a legally sufficient 
evidentiary basis for the jury reasonably to find just one element of his or her prima facie 
case” risks an adverse judgment as a matter of law); Celotex Corp. v. Catrett,

477 U.S. 317

, 322–23 (1986) (same). Hershey is thus entitled to some discovery bearing on this 
element—namely Mr. Witham’s “bona fide religious belief.” See Fed. R. Civ. P. 26(b)(1) 
(“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 
party’s claim or defense and proportional to the needs of the case . . . .”). 
   Mr. Witham maintains that the discovery at issue is irrelevant because he has 

already “established a prima facie case of religious discrimination, including that his 
sincerely held religious beliefs precluded him from taking the Covid-19 vaccine.” (Dkt. 
No. 61 at 4.) Mr. Witham is confusing adequacy of pleading, which allows a claim to go 
forward against a motion to dismiss, with conclusive proof. And neither in his motion  
papers nor at oral argument did Mr. Witham provide the Court with any authority to 
support the proposition that discovery is irrelevant into matters that a court finds to have 
been adequately pleaded—a rule that, if generally accepted, would tremendously change 

litigation in the federal courts. Nor has there yet been any conclusive finding that the bona 
fide religious belief element of Mr. Witham’s case has been proven.       
   Mr. Witham points the Court to its findings at the motion-to-dismiss stage of the 
case,  including:  (i)  that  “[Mr. Witham]  alleges  facts  plausibly  showing  religious 
discrimination in violation of Title VII and the Minnesota Human Rights Act”; (ii) that 

“[Mr. Witham] alleges facts plausibly showing a prima facie case”; (iii) that the “religious 
accommodation-request  form  [Mr. Witham]  submitted  to  Hershey  includes  multiple 
references  to  [Mr. Witham]’s  abortion-related  objections”;  and  (iv)  that  Mr. Witham 
“notified Hershey of the specific nature of his objections.” (Dkt. No. 61 at 5 (quoting Dkt. 
No. 24 at 1, 7, 8–9).) But these findings pertain to Mr. Witham’s meeting the required 

pleading standard, not his burden of proof at trial. See also, e.g., Blomker v. Jewell,

831 F.3d 1051, 1056

 (2016) (distinguishing the “prima facie model,” an evidentiary standard, 
from the lower “pleading standard” of the Federal Rules of Civil Procedure). The Court 
cannot convert Mr. Witham’s factual pleadings into conclusive findings so as to deny 
discovery here. See, e.g., Lopez v. Don Herring Ltd.,

327 F.R.D. 567

, 597 (N.D. Tex. 2018)

(plaintiff cannot resist discovery into a key requirement of his claim “based on his belief
that he will prevail, much less on any misapprehension that he already has conclusively
prevailed on this element of his claim”).
Moreover, even if the Court were to accept that Mr. Witham has established the
elements of his prima facie case, Hershey would still be entitled to the discovery as it
remains relevant to its “defense” of the case, including, for example, seeking to undermine

Mr. Witham’s evidence. See Fed. R. Civ. P. 26 advisory committee’s note to 2015
amendment (one of the “examples of information that, suitably focused, would be relevant
to the parties’ claims or defenses” is “information that could be used to impeach a likely
witness”). Indeed, Hershey has identified emails sent by Mr. Witham objecting to, or
commenting on, the COVID-19 vaccines for non-religious reasons. (Dkt. No. 46 at 7.)

Hershey thus maintains that the same type of evidence, which it hopes to uncover by this
discovery, would be relevant to undermine Mr. Witham’s claim that it is his sincerely held
religious beliefs that necessitated his request for exemption for Hershey’s COVID-19
vaccine mandate. (Id.) The Court agrees that Hershey is entitled to the discovery on this
basis.

In short, as a matter of both fact and law, the Court cannot accept the premise that
discovery is precluded here just because one party has adequately pleaded their case.
Finally, Mr. Witham takes issue with Hershey’s position that it seeks the discovery
at issue to determine “whether he has acted consistently in the past.” (Dkt. No. 61 at 12
(quoting Dkt. No. 47-1 at 63).) Mr. Witham challenges this basis for the discovery as

improper “because the Eighth Circuit has recently reiterated that ‘religious beliefs do not
need to be acceptable, logical, consistent, or comprehensible to others.’” (Id. (quoting
Ringhofer v. Mayo Clinic,

102 F.4th 894, 900

 (8th Cir. 2024)) (cleaned up).) But the Eighth 
Circuit’s  holding  in  Ringhofer  pertains  to  consistency  between  a  plaintiff’s  claimed 
religious beliefs and those of “other [members]” of the same religion. See

102 F.4th at 902

 
(“beliefs do not have to be uniform across all members of a religion or ‘acceptable, logical, 
consistent, or comprehensible to others’” (emphasis added)). That is not the same as the 

basis on which Hershey bases its discovery.                               
   Hershey’s  proffered  justification  for  the  discovery  at  issue  pertains  to  the 
consistency of Mr. Witham’s own beliefs at different points in time, not Mr. Witham’s 
beliefs as compared to anyone else’s beliefs. Hershey is entitled to proportionate discovery 
into matters bearing on the nature of Mr. Witham’s alleged bona fide religious beliefs in 

connection with COVID-19 and COVID-19 vaccines. See, e.g., EEOC v. Baystate Med. 
Ctr., Inc., No. 16-CV-30086,

2017 WL 4883458

, at *4 (D. Mass. Oct. 30, 2017) (allowing 
discovery in a similar context because “requested information is relevant to whether or not 
[claimant] was observing a religious belief or indulging a personal preference when she 
declined the influenza vaccine”).                                         

   Indeed, even in recent years,2 courts have generally required that plaintiffs establish 
the sincere-belief element of their claims—even though those courts do not enquire into 
the consistency of such beliefs as compared to other observers within the same religion. 
See, e.g., Cesare v. PACT MSO, LLC, -- F. Supp. 3d --,

2024 WL 2823193

, at *3–5 (D. 


2   Mr. Witham has highlighted for the Court the United States Supreme Court’s recent 
decision in Groff v. DeJoy,

600 U.S. 447

 (2023), which, he contends, “changed the standard 
for an employer to establish undue hardship under Title VII, making it significantly more 
difficult than the standard used in the past” (Dkt. No. 61 at 8). A review of Groff and 
subsequent lower courts’ decisions applying it makes clear that it has no impact on the 
consideration of other elements of a Title VII claim, including the element of sincerely held 
religious beliefs.                                                        
Conn. June 4, 2024); Shields v. Main Line Hosps., Inc.,

700 F. Supp. 3d 265

, 269–73 (M.D. 
Pa. 2003); Devore v. Univ. of Ky. Bd. of Trs.,

693 F. Supp. 3d 757

, 761–63 (E.D. Ky. 2023). 
   As these courts have observed, it remains true that, “[t]hough courts should not 

inquire into validity or plausibility of a belief, courts should decide whether the beliefs are 
truly held and whether they are religious.” Devore, 693 F. Supp. 3d at 762–63 (internal 
citations omitted). More relevant here, Cesare considered the issue at the summary-
judgment stage and made clear that “[a]ssessing a claimant’s sincerity of belief demands a 
full exposition of facts and the opportunity for the factfinder to observe the claimant’s 

demeanor during direct and cross-examination.’”

2024 WL 2823193

, at *3.   
   In short, as it indicated at oral argument, the Court finds that the discovery at issue 
is relevant. It thus considers what is proportionate under the circumstances of this case. 
        b.   Proportionality                                            
   Once relevancy is shown, it is the opponent of discovery who bears the burden of 

demonstrating the disproportionality of the discovery request. Target Corp. v. Ace Am. Ins. 
Co.,

576 F. Supp. 3d 609

, 622 (D. Minn. 2021). The party resisting discovery must make 
a specific showing of reasons why the relevant discovery should not be had. See Lynch v. 
Experian Info. Sols., Inc.,

569 F. Supp. 3d 959

, 963 (D. Minn. 2021) (“Routine, boilerplate 
objections, without more specific explanations for any refusal to provide information, are 

not consistent with the Federal Rules of Civil Procedure.” (Cleaned up.)). 
   “The  parties  and  the  court  have  a  collective  responsibility  to  consider  the 
proportionality of all discovery and consider it in resolving discovery disputes.” Vallejo v. 
Amgen, Inc.,

903 F.3d 733, 742

 (8th Cir. 2018). “[A] court can—and must—limit proposed 
discovery that it determines is not proportional to the needs of the case.”

Id.

 Considerations 
bearing on proportionality include “the importance of the issues at stake in the action, the 
amount in controversy, the parties’ relative access to relevant information, the parties’ 

resources, the importance of the discovery in resolving the issues, and whether the burden 
or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 
Accordingly, even relevant discovery may not be permitted where “compliance would be 
unduly  burdensome,  or  where  harm  to  the  person  from  whom  discovery  is  sought 
outweighs the need of the person seeking discovery of the information.” Miscellaneous 

Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2,

197 F.3d 922, 925

 (8th Cir. 
1999).                                                                    
   Here, Mr. Witham does not specifically argue that compliance with the discovery 
would be unduly burdensome. Instead, the focal point of his proportionality argument is 
that the discovery should be narrowed in scope, but he does not explain how it should be 

narrowed. (Dkt. No. 61 at 15.) Mr. Witham’s brief cites an unpublished opinion from the 
Fifth Circuit, where “plaintiffs were only asked to provide letters from pastors or third 
parties attesting to the religious beliefs.” (Id. (citing Sambrano v. United Airlines, Inc., No. 
21-11159,

2022 WL 486610

, at *1 n.2 (5th Cir. Feb. 17, 2022) (per curiam) (unpublished).) 
The Court assumes then that Mr. Witham is asking the Court to narrow the discovery at 

issue to “letters from pastors or third parties attesting to the religious beliefs” as observed 
in Sambrano. But that case does not involve a discovery question. Instead, the Sambrano 
court considered a denial of preliminary injunctive relief in a matter involving a COVID-
19  vaccine  mandate.

2022 WL 486610

,  at  *1.  The  court  indeed  observed,  albeit 
disapprovingly, that, as part of the policy at issue there, “[s]ome employees were asked to 
provide a letter from a pastor or other third party attesting that the employee actually held 
religious beliefs.” Id.; see also

id. at *11

(Smith, J., dissenting) (“the majority calls that

process a ‘bizarre inquisition’”). The Sambrano court never even suggested that the same
“inquisition” should be accepted as part of a vaccine mandate, let alone made the standard
in failure-to-accommodate litigation. Mr. Witham’s reliance on Sambrano to limit the
discovery is misplaced.
Mr. Witham provides no other basis to limit the discovery at issue. The Court also

notes that the parties have made certain arguments regarding the burden in responding to
this discovery, but neither has provided the Court with the sufficient, specific information
needed to evaluate the onerousness of any such burden. The Court declines to further
entertain this inquiry on its own.
Accordingly, the Court grants Hershey’s motion to compel as to its Requests for

Production Nos. 9, 13, 18 through 23, 26, 31, 32, 46 through 48, and 60. As the Court noted
at oral argument, the production to these requests shall include text messages as specifically
set forth in the relevant requests—to which Mr. Witham has not made any specific
objections in his opposition papers. See also Fed. R. Civ. P. 34(a)(1) (expressly permitting
discovery of “electronically stored information”).
B. Mr. Witham’s Motion to Compel Further Discovery Responses (Dkt.
No. 50)
Mr. Witham has moved to compel further responses to his discovery requests3 for
three main categories of documents and information relating to (i) Hershey’s creation and
implementation of its COVID-19 vaccine mandate, including Hershey executives’ personal
communications relating to the vaccines and mandate, (ii) Hershey’s evaluation of other

employees’ requests for religious accommodation from the mandate, and (iii) the costs of
accommodating Mr. Witham’s religious beliefs. The Court addresses these categories in
turn.
a. Discovery into Hershey’s Creation and Implementation of Its
COVID-19 Vaccine Mandate
Mr. Witham seeks discovery into Hershey’s creation and implementation of its
COVID-19 vaccine mandate so he can evaluate whether the mandate “was discriminatory
from the start,” i.e., “whether [Hershey] had discriminatory actions and motives toward
religious persons and the unvaccinated in the design and implementation of the Vaccine

Mandate.” (Dkt. No. 52 at 13.)
But Mr. Witham’s claim against Hershey for failing to reasonably accommodate his
sincerely held religious beliefs—the only remaining claim in this case—“does not turn on
the employer’s intent or actual motive.” Peebles v. Potter,

354 F.3d 761

, 766–67 (8th Cir. 
2004); accord Lavelle-Hayden v. Legacy Health, -- F. Supp. 3d --,

2024 WL 3822712

, at

*7 (D. Or. 2024) (“while an employer’s alleged discriminatory motive is relevant to a

3 As noted above, the Court does not consider the branch of this motion that pertains to
requests for admission. See supra Note 1.
disparate treatment claim, it is not an element of a failure to accommodate claim”); see also
Fed. R. Civ. P. 26 advisory committee’s note to 2000 amendment (parties in litigation
“have no entitlement to discovery to develop new claims or defenses that are not already

identified in the pleadings”).4 Mr. Witham has provided no legal authority to the contrary
(and, in fact, no legal authority at all on this issue).
Accordingly, the Court finds that Mr. Witham, as the party seeking discovery, has
failed to demonstrate its relevancy so as to support his motion to compel. To the extent
Hershey’s motive behind the COVID-19 vaccine mandate is marginally relevant, the

expansive scope of the discovery at issue outweighs its potential benefits. The Court thus
denies the motion as to this category of documents and information.
b. Discovery into Hershey’s Evaluation of Other Employees’ Requests
for Religious Accommodation from the Mandate
Mr. Witham seeks discovery into Hershey’s evaluation of the requests for religious
accommodation from its COVID-19 vaccine mandate. This discovery is relevant on its
face. See Fed. R. Civ. P. 26 advisory committee’s note to 2000 amendment (one of the

4 Hershey’s motive, if at all relevant, must pertain to its failure to accommodate, not its
implementation of the COVID-19 vaccine mandate in the first place. See also EEOC v.
Abercrombie & Fitch Stores, Inc.,

575 U.S. 768, 774

 (2015) (“[Title VII’s] disparate-
treatment provision prohibits actions taken  with the  motive of avoiding the need for 
accommodating a religious practice. A request for accommodation, or the employer’s 
certainty that the practice exists, may make it easier to infer motive, but is not a necessary 
condition of liability.”); Jiminez v. Mary Wash. Coll.,

57 F.3d 369, 383

 (4th Cir. 1995) 
(“The crucial issue in a Title VII action is an unlawfully discriminatory motive for a 
defendant’s conduct, not the wisdom or folly of its business judgment.”). This issue is 
addressed in the Court’s discussion the next category of discovery Mr. Witham seeks. 
“examples of information that, suitably focused, would be relevant to the parties’ claims 
or defenses” is “other incidents of the same type”).                      
   Hershey resists the discovery on the ground that “[its] decision to grant or deny 

other employees’ religious accommodation requests involves an individualized inquiry of 
that  individual’s  beliefs  and  the  undue  hardship,  if  any,  caused  by  granting  an 
accommodation request.” (Dkt. No. 58 at 14.) This is true; but it does nothing to negate the 
fact that Hershey’s evaluation of similar requests, i.e., “other incidents of the same type,” 
may explain the motive behind its denial of Mr. Witham’s request—which is relevant to 

his claim and Hershey’s defense in this case. See Abercrombie,

575 U.S. at 774

.
The Court agrees with Hershey, however, that Mr. Witham is not entitled to every
document relating to the requests made by more than 100 Hershey employees, especially
given the privacy expectations of those non-parties. (See Dkt. No. 58 at 16.) Such an
expansive discovery is overbroad on its face. Accordingly, the Court will narrow this

discovery to include only the religious exemption request files for 25 employees who
worked in a Hershey function most similar to Mr. Witham’s. Hershey shall redact the
employees’ names and other personally-identifying information from the files. The Court
otherwise denies Mr. Witham’s motion to compel as to the remainder of this category of
information without prejudice. Mr. Witham is free to move to compel further responses or

production if he believes additional justifications are revealed upon his review of the
discovery.
c. Discovery into the Costs of Accommodating Mr. Witham’s
Religious Beliefs
In this last category, Mr. Witham seeks discovery into the costs of accommodating
his religious beliefs, including the actual costs Hershey incurred in terminating him. He
maintains that the discovery goes to the “undue hardship” element at the heart of Hershey’s
defense. The Court agrees.

As recently clarified by the Supreme Court in Groff v. DeJoy,

600 U.S. 447

 (2023), 
an  accommodation  constitutes  an  undue  hardship  when  the  burden  it  imposes  is 
“substantial  within  the  overall  context  of  an  employer’s  business.”

Id. at 468

.  In 
determining whether a burden is substantial, a court must consider “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 470–71 (cleaned 
up).                                                                      
   In clarifying the standard, the Court emphasized that certain kinds of costs are 
irrelevant in evaluating undue hardship. For example, the Court explained that “not all 
impacts on coworkers are relevant,” only “coworker impacts that go on to affect the 

conduct of the business.”

Id. at 472

 (cleaned up). “Following Groff, district courts have 
continued to consider both economic and noneconomic costs when conducting the undue 
hardship analysis.” Lavelle-Hayden,

2024 WL 3822712

, at *9 (citing cases). 
   Here, Hershey has not explained how it plans to demonstrate the undue hardship in 
connection with Mr. Witham’s accommodation request or otherwise provided anything to 

undermine Mr. Witham’s proffered justification for the discovery at issue. Accordingly, 
the Court grants Mr. Witham’s motion to compel as to the discovery relating to the 
potential costs to Hershey for accommodating his religious beliefs and the actual costs 
Hershey incurred in terminating him.                                      

IV.  ORDER                                                                
   Accordingly, based on the foregoing and on all of the files, records, and proceedings 
herein, IT IS HEREBY ORDERED THAT:                                        
   1.   Defendant The Hershey Company’s Motion to Compel (Dkt. No. 44) is 
        GRANTED IN PART and DENIED IN PART as set forth in this Order;  

        and                                                             
   2.   Plaintiff  Christopher  Witham’s  Motion  to  Compel  (Dkt.  No. 50)  is 
        GRANTED IN PART and DENIED IN PART as set forth in this Order.  


Date: September 4, 2024         s/ John F. Docherty                     
                                JOHN F. DOCHERTY                        
                                United States Magistrate Judge

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Christopher Witham, Case No. 23-CV-1563 (ECT/JFD)

Plaintiff,

v. ORDER

The Hershey Company,

Defendant.

42 U.S.C. § 12101

 et seq.; (ii) age discrimination under 
the  Age  Discrimination  in  Employment  Act,

29 U.S.C. § 621

et seq.; (iii) race
discrimination under Title VII; (iv) sex discrimination under Title VII; and (v) breach of

information, the parties’ resources, and importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

Id.

                                                                       
   If a party believes that an opposing party has failed to respond to discovery, or has 
served  insufficient  responses,  it  may  “move  for  an  order  compelling  disclosure  or 

discovery.” Fed. R. Civ. P. 37(a)(1). A court may compel responses if a party fails to 
answer an interrogatory propounded under Rule 33 or to produce documents requested 
under Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv).1 For purposes of such a motion, “an 
evasive or incomplete disclosure, answer, or response must be treated as a failure to 
disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4).                  


1   A court, however, may not compel responses to requests for admission. See also Fed. 
R. Civ. P. 37(c)(2) (“If a party fails to admit what is requested under Rule 36 and if the 
requesting party later proves a document to be genuine or the matter true, the requesting 
party may move that the party who failed to admit pay the reasonable expenses, including 
attorney’s fees, incurred in making that proof.”). Thus, the Court does not consider the 
branch of Mr. Witham’s motion to compel that pertain to his requests for admissions. 
   A proper discovery response must either answer the request fully or state with 
specificity the grounds for objecting to the request. See Fed. R. Civ. P. 33(b), 34(b)(2). 
Objections must be stated with specificity and in relation to specific requests; any ground 

“not stated in a timely objection is waived unless the party’s failure to object is excused by 
the court for good cause.” Cargill, Inc. v. Ron Burge Trucking, Inc.,

284 F.R.D. 421, 424

 
(D. Minn. 2012). The party seeking discovery bears the initial responsibility for making a 
threshold showing of relevancy before the production of information is required. See, e.g., 
Hofer v. Mack Trucks, Inc.,

981 F.2d 377, 380

(8th Cir. 1992).

495 F.3d 570, 575

 (8th Cir. 2007)).) This standard leaves no 

doubt that “a bona fide religious belief” is an essential element of Mr. Witham’s claim, one 
that he will have to prove at trial to recover on his claim. See id.; Tatum v. City of Berkeley,

408 F.3d 543

, 549–50 (8th Cir. 2005) (a plaintiff who “fails to establish a legally sufficient 
evidentiary basis for the jury reasonably to find just one element of his or her prima facie 
case” risks an adverse judgment as a matter of law); Celotex Corp. v. Catrett,

477 U.S. 317

, 322–23 (1986) (same). Hershey is thus entitled to some discovery bearing on this 
element—namely Mr. Witham’s “bona fide religious belief.” See Fed. R. Civ. P. 26(b)(1) 
(“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 
party’s claim or defense and proportional to the needs of the case . . . .”). 
   Mr. Witham maintains that the discovery at issue is irrelevant because he has 

already “established a prima facie case of religious discrimination, including that his 
sincerely held religious beliefs precluded him from taking the Covid-19 vaccine.” (Dkt. 
No. 61 at 4.) Mr. Witham is confusing adequacy of pleading, which allows a claim to go 
forward against a motion to dismiss, with conclusive proof. And neither in his motion  
papers nor at oral argument did Mr. Witham provide the Court with any authority to 
support the proposition that discovery is irrelevant into matters that a court finds to have 
been adequately pleaded—a rule that, if generally accepted, would tremendously change 

litigation in the federal courts. Nor has there yet been any conclusive finding that the bona 
fide religious belief element of Mr. Witham’s case has been proven.       
   Mr. Witham points the Court to its findings at the motion-to-dismiss stage of the 
case,  including:  (i)  that  “[Mr. Witham]  alleges  facts  plausibly  showing  religious 
discrimination in violation of Title VII and the Minnesota Human Rights Act”; (ii) that 

“[Mr. Witham] alleges facts plausibly showing a prima facie case”; (iii) that the “religious 
accommodation-request  form  [Mr. Witham]  submitted  to  Hershey  includes  multiple 
references  to  [Mr. Witham]’s  abortion-related  objections”;  and  (iv)  that  Mr. Witham 
“notified Hershey of the specific nature of his objections.” (Dkt. No. 61 at 5 (quoting Dkt. 
No. 24 at 1, 7, 8–9).) But these findings pertain to Mr. Witham’s meeting the required 

pleading standard, not his burden of proof at trial. See also, e.g., Blomker v. Jewell,

831 F.3d 1051, 1056

 (2016) (distinguishing the “prima facie model,” an evidentiary standard, 
from the lower “pleading standard” of the Federal Rules of Civil Procedure). The Court 
cannot convert Mr. Witham’s factual pleadings into conclusive findings so as to deny 
discovery here. See, e.g., Lopez v. Don Herring Ltd.,

327 F.R.D. 567

, 597 (N.D. Tex. 2018)

102 F.4th 894, 900

 (8th Cir. 2024)) (cleaned up).) But the Eighth 
Circuit’s  holding  in  Ringhofer  pertains  to  consistency  between  a  plaintiff’s  claimed 
religious beliefs and those of “other [members]” of the same religion. See

102 F.4th at 902

 
(“beliefs do not have to be uniform across all members of a religion or ‘acceptable, logical, 
consistent, or comprehensible to others’” (emphasis added)). That is not the same as the 

basis on which Hershey bases its discovery.                               
   Hershey’s  proffered  justification  for  the  discovery  at  issue  pertains  to  the 
consistency of Mr. Witham’s own beliefs at different points in time, not Mr. Witham’s 
beliefs as compared to anyone else’s beliefs. Hershey is entitled to proportionate discovery 
into matters bearing on the nature of Mr. Witham’s alleged bona fide religious beliefs in 

connection with COVID-19 and COVID-19 vaccines. See, e.g., EEOC v. Baystate Med. 
Ctr., Inc., No. 16-CV-30086,

2017 WL 4883458

, at *4 (D. Mass. Oct. 30, 2017) (allowing 
discovery in a similar context because “requested information is relevant to whether or not 
[claimant] was observing a religious belief or indulging a personal preference when she 
declined the influenza vaccine”).                                         

   Indeed, even in recent years,2 courts have generally required that plaintiffs establish 
the sincere-belief element of their claims—even though those courts do not enquire into 
the consistency of such beliefs as compared to other observers within the same religion. 
See, e.g., Cesare v. PACT MSO, LLC, -- F. Supp. 3d --,

2024 WL 2823193

, at *3–5 (D. 


2   Mr. Witham has highlighted for the Court the United States Supreme Court’s recent 
decision in Groff v. DeJoy,

600 U.S. 447

 (2023), which, he contends, “changed the standard 
for an employer to establish undue hardship under Title VII, making it significantly more 
difficult than the standard used in the past” (Dkt. No. 61 at 8). A review of Groff and 
subsequent lower courts’ decisions applying it makes clear that it has no impact on the 
consideration of other elements of a Title VII claim, including the element of sincerely held 
religious beliefs.                                                        
Conn. June 4, 2024); Shields v. Main Line Hosps., Inc.,

700 F. Supp. 3d 265

, 269–73 (M.D. 
Pa. 2003); Devore v. Univ. of Ky. Bd. of Trs.,

693 F. Supp. 3d 757

, 761–63 (E.D. Ky. 2023). 
   As these courts have observed, it remains true that, “[t]hough courts should not 

inquire into validity or plausibility of a belief, courts should decide whether the beliefs are 
truly held and whether they are religious.” Devore, 693 F. Supp. 3d at 762–63 (internal 
citations omitted). More relevant here, Cesare considered the issue at the summary-
judgment stage and made clear that “[a]ssessing a claimant’s sincerity of belief demands a 
full exposition of facts and the opportunity for the factfinder to observe the claimant’s 

demeanor during direct and cross-examination.’”

2024 WL 2823193

, at *3.   
   In short, as it indicated at oral argument, the Court finds that the discovery at issue 
is relevant. It thus considers what is proportionate under the circumstances of this case. 
        b.   Proportionality                                            
   Once relevancy is shown, it is the opponent of discovery who bears the burden of 

demonstrating the disproportionality of the discovery request. Target Corp. v. Ace Am. Ins. 
Co.,

576 F. Supp. 3d 609

, 622 (D. Minn. 2021). The party resisting discovery must make 
a specific showing of reasons why the relevant discovery should not be had. See Lynch v. 
Experian Info. Sols., Inc.,

569 F. Supp. 3d 959

, 963 (D. Minn. 2021) (“Routine, boilerplate 
objections, without more specific explanations for any refusal to provide information, are 

not consistent with the Federal Rules of Civil Procedure.” (Cleaned up.)). 
   “The  parties  and  the  court  have  a  collective  responsibility  to  consider  the 
proportionality of all discovery and consider it in resolving discovery disputes.” Vallejo v. 
Amgen, Inc.,

903 F.3d 733, 742

 (8th Cir. 2018). “[A] court can—and must—limit proposed 
discovery that it determines is not proportional to the needs of the case.”

Id.

 Considerations 
bearing on proportionality include “the importance of the issues at stake in the action, the 
amount in controversy, the parties’ relative access to relevant information, the parties’ 

resources, the importance of the discovery in resolving the issues, and whether the burden 
or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 
Accordingly, even relevant discovery may not be permitted where “compliance would be 
unduly  burdensome,  or  where  harm  to  the  person  from  whom  discovery  is  sought 
outweighs the need of the person seeking discovery of the information.” Miscellaneous 

Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2,

197 F.3d 922, 925

 (8th Cir. 
1999).                                                                    
   Here, Mr. Witham does not specifically argue that compliance with the discovery 
would be unduly burdensome. Instead, the focal point of his proportionality argument is 
that the discovery should be narrowed in scope, but he does not explain how it should be 

narrowed. (Dkt. No. 61 at 15.) Mr. Witham’s brief cites an unpublished opinion from the 
Fifth Circuit, where “plaintiffs were only asked to provide letters from pastors or third 
parties attesting to the religious beliefs.” (Id. (citing Sambrano v. United Airlines, Inc., No. 
21-11159,

2022 WL 486610

, at *1 n.2 (5th Cir. Feb. 17, 2022) (per curiam) (unpublished).) 
The Court assumes then that Mr. Witham is asking the Court to narrow the discovery at 

issue to “letters from pastors or third parties attesting to the religious beliefs” as observed 
in Sambrano. But that case does not involve a discovery question. Instead, the Sambrano 
court considered a denial of preliminary injunctive relief in a matter involving a COVID-
19  vaccine  mandate.

2022 WL 486610

,  at  *1.  The  court  indeed  observed,  albeit 
disapprovingly, that, as part of the policy at issue there, “[s]ome employees were asked to 
provide a letter from a pastor or other third party attesting that the employee actually held 
religious beliefs.” Id.; see also

id. at *11

(Smith, J., dissenting) (“the majority calls that

354 F.3d 761

, 766–67 (8th Cir. 
2004); accord Lavelle-Hayden v. Legacy Health, -- F. Supp. 3d --,

2024 WL 3822712

, at

*7 (D. Or. 2024) (“while an employer’s alleged discriminatory motive is relevant to a

575 U.S. 768, 774

 (2015) (“[Title VII’s] disparate-
treatment provision prohibits actions taken  with the  motive of avoiding the need for 
accommodating a religious practice. A request for accommodation, or the employer’s 
certainty that the practice exists, may make it easier to infer motive, but is not a necessary 
condition of liability.”); Jiminez v. Mary Wash. Coll.,

57 F.3d 369, 383

 (4th Cir. 1995) 
(“The crucial issue in a Title VII action is an unlawfully discriminatory motive for a 
defendant’s conduct, not the wisdom or folly of its business judgment.”). This issue is 
addressed in the Court’s discussion the next category of discovery Mr. Witham seeks. 
“examples of information that, suitably focused, would be relevant to the parties’ claims 
or defenses” is “other incidents of the same type”).                      
   Hershey resists the discovery on the ground that “[its] decision to grant or deny 

other employees’ religious accommodation requests involves an individualized inquiry of 
that  individual’s  beliefs  and  the  undue  hardship,  if  any,  caused  by  granting  an 
accommodation request.” (Dkt. No. 58 at 14.) This is true; but it does nothing to negate the 
fact that Hershey’s evaluation of similar requests, i.e., “other incidents of the same type,” 
may explain the motive behind its denial of Mr. Witham’s request—which is relevant to 

his claim and Hershey’s defense in this case. See Abercrombie,

575 U.S. at 774

As recently clarified by the Supreme Court in Groff v. DeJoy,

600 U.S. 447

 (2023), 
an  accommodation  constitutes  an  undue  hardship  when  the  burden  it  imposes  is 
“substantial  within  the  overall  context  of  an  employer’s  business.”

Id. at 468

.  In 
determining whether a burden is substantial, a court must consider “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 470–71 (cleaned 
up).                                                                      
   In clarifying the standard, the Court emphasized that certain kinds of costs are 
irrelevant in evaluating undue hardship. For example, the Court explained that “not all 
impacts on coworkers are relevant,” only “coworker impacts that go on to affect the 

conduct of the business.”

Id. at 472

 (cleaned up). “Following Groff, district courts have 
continued to consider both economic and noneconomic costs when conducting the undue 
hardship analysis.” Lavelle-Hayden,

2024 WL 3822712

, at *9 (citing cases). 
   Here, Hershey has not explained how it plans to demonstrate the undue hardship in 
connection with Mr. Witham’s accommodation request or otherwise provided anything to 

undermine Mr. Witham’s proffered justification for the discovery at issue. Accordingly, 
the Court grants Mr. Witham’s motion to compel as to the discovery relating to the 
potential costs to Hershey for accommodating his religious beliefs and the actual costs 
Hershey incurred in terminating him.                                      

IV.  ORDER                                                                
   Accordingly, based on the foregoing and on all of the files, records, and proceedings 
herein, IT IS HEREBY ORDERED THAT:                                        
   1.   Defendant The Hershey Company’s Motion to Compel (Dkt. No. 44) is 
        GRANTED IN PART and DENIED IN PART as set forth in this Order;  

        and                                                             
   2.   Plaintiff  Christopher  Witham’s  Motion  to  Compel  (Dkt.  No. 50)  is 
        GRANTED IN PART and DENIED IN PART as set forth in this Order.  


Date: September 4, 2024         s/ John F. Docherty                     
                                JOHN F. DOCHERTY                        
                                United States Magistrate Judge

Reference

Status: Unknown