United States Court of Appeals For the First Circuit

No. 24-1289

GEORGE RODRIQUE, II,

Plaintiff, Appellant,

v.

HEARST COMMUNICATIONS, INC.; and HEARST STATIONS, INC.,

Defendants, Appellees,

KATIE DISHNICA, Director, Massachusetts Department of Unemployment Assistance,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Rikelman, Selya, and Kayatta, Circuit Judges.

Ilya I. Feoktistov, with whom Law Office of Ilya Feoktistov was on brief, for appellant. Stephen H. Yuhan, with whom Jonathan R. Donnellan, Hearst Corporation, Office of General Counsel, Brian Whiteley, and Barclay Damon LLP were on brief, for appellees.

January 17, 2025

- 1 - RIKELMAN, Circuit Judge. George Rodrique, II sued his

employer, Hearst Stations, Inc. ("Hearst"), after it denied his

request for a religious exemption from the company's COVID-19

vaccination requirement and then terminated him for refusing to

receive the vaccine. Rodrique claims that Hearst's failure to

grant his exemption request violated Title VII of the Civil Rights

Act of 1964, which prohibits employers from discriminating against

their employees based on religion.

The district court granted Hearst's motion for summary

judgment, concluding that Hearst had not discriminated against

Rodrique because his objections to the vaccine were not religious.

In its ruling, the court did not reach the second part of the

analysis of a religious accommodation claim under Title VII --

that is, whether granting Rodrique's request would have imposed an

undue hardship on Hearst.

Rodrique appeals, arguing that his objections were

religious and that exempting him from the vaccine requirement would

not have imposed any undue hardship on Hearst. Before us, he

distills his no-undue-hardship argument into a single contention:

Hearst provided insufficient evidence that the COVID-19 vaccine

reduces transmission of the virus.

In conducting our analysis, we assume that Rodrique has

shown a religious objection to the vaccine requirement. But

because the undisputed facts in the record demonstrate that Hearst

- 2 - reasonably relied on objective medical evidence in concluding that

the vaccine reduces the likelihood of transmitting the virus, we

reject Rodrique's no-undue-hardship argument. Thus, we affirm the

district court's order granting summary judgment to Hearst, albeit

on different grounds.

I. BACKGROUND

A. Relevant Facts

Rodrique worked as a photographer for WCVB-TV, a

broadcast television news station that serves the greater Boston

area and is owned and operated by Hearst. He started at WCVB-TV

in 2016 and worked there continuously until his termination in

November 2021, after he refused to obtain a COVID-19 vaccine and

Hearst did not grant his request for a religious exemption.

Hearst has several layers of parent companies, some of

which played a role in the events at issue in this appeal. Hearst

is wholly owned by Hearst Television, Inc. (HTV), which is a wholly

owned subsidiary of Hearst Communications, Inc. (HCI). HCI, in

turn, is a wholly owned subsidiary of the Hearst Corporation.

When the COVID-19 pandemic began in early 2020, Hearst,

like other businesses, evaluated how to respond. HTV formed a

committee (the "Committee") to advise its broadcast stations about

pandemic procedures and precautions. The Committee included

Senior Vice President of Human Resources Kristin Hansen, along

- 3 - with HTV's Human Resources Director and other company leaders and

employees.

Hearst's COVID-19 procedures and guidance evolved as the

pandemic continued. On February 1, 2021, Committee members emailed

HTV general managers a memorandum addressing frequently asked

questions about the company's plan for a vaccination policy and

providing general information about vaccine availability and

effectiveness. In August of that year, after the vaccine became

widely available, HTV implemented a "Proof or Test" policy,

requiring that employees either show proof of vaccination or

undergo weekly COVID-19 tests. WCVB-TV covered the cost of the

weekly tests on its health insurance plans and reimbursed any

employees who were not on the company's plans for their

out-of-pocket expenses. Further, all employees were compensated

for the time they took to get tested. Consistent with this policy,

a WCVB-TV Human Resources coordinator emailed Rodrique on August

12, 2021, informing him that the company had not received proof of

his vaccination and that he would be required to undergo COVID-19

testing on a weekly basis.

As part of its pandemic response in 2021, WCVB-TV had

increased the number of station vehicles it owned and leased to

employees so that they could travel to photoshoot locations in

separate vehicles. As of September 2021, WCVB-TV allowed

vaccinated employees to travel together in a single vehicle, but

- 4 - because Rodrique was unvaccinated, his team was excluded. It cost

WCVB-TV over $7,000 for Rodrique to maintain his own vehicle from

May 2021 to November 2021, including over $2,000 in fuel.

Hearst's "Proof or Test" policy ended in late 2021, when

its vaccination requirement began and most employees resumed

in-person work. On September 13, senior executives of the Hearst

Corporation emailed employees to explain that, going forward, the

company would require employees and guests entering the offices of

any of its wholly owned U.S. businesses to be vaccinated against

COVID-19. And the next day, an email from HTV's President

confirmed that all employees would need to be fully vaccinated

against COVID-19 "as defined by the [Centers for Disease Control

(CDC)]" unless an employee obtained an approved exemption as an

accommodation.

In response to Hearst's shift in policy, Rodrique

initially sought assistance in obtaining a medical exemption from

his doctor, but he was unsuccessful. He then submitted a request

to Hearst for a religious exemption. On his exemption form, he

explained that, although he did not subscribe to any particular

organized religion, he had sincerely held religious beliefs that

were "an amalgamation of many ideologies and spiritual practices,"

and that these beliefs prohibited him from receiving the vaccine.

Rodrique identified two specific reasons why obtaining the vaccine

would violate his religious beliefs: the COVID-19 vaccine was

- 5 - developed "utilizing fetal cell lines from aborted babies," in

contravention of his religious opposition to abortion, and the

vaccine would require introducing "chemicals into [his] body" in

contravention of "the biblical maxim of 'my body is my temple[;]

do nothing to cause its destruction.'"

Rodrique's religious exemption request was reviewed by

Hansen and other company officials. On November 5, 2021, Hansen

informed Rodrique that HTV had denied his request. Hansen

explained that HTV had:

assumed that [Rodrique] ha[d] identified a sincerely held religious belief that conflicts with the vaccination policy . . . . [But it] ha[d] conducted an individualized assessment of [his] situation and ha[d] determined that allowing [him] to be in [HTV's] offices unvaccinated on an indefinite basis create[d] significant risk of substantial harm to the health or safety of [its] workplace and employees.

Rodrique did not receive the vaccine and was deemed to have

resigned effective November 19, 2021.

B. Legal Proceedings

After filing a complaint against Hearst with the Equal

Employment Opportunity Commission (EEOC), Rodrique sued Hearst and

other defendants asserting various violations of federal and state

law, including religious discrimination claims under Title VII of

the Civil Rights Act, 42 U.S.C. § 2000e-2, and the congruent

Massachusetts statute, Mass. Gen. Laws ch. 151B, § 4. Elaborating

- 6 - on his religious objections to the vaccine, and especially his

"body is a temple" objection, Rodrique alleged that his beliefs

"require[d] him to avoid polluting his body" with "substances that

do not exist in nature." Following motions to dismiss by several

defendants, which are not at issue here, only claims against Hearst

and HCI remained. Hearst and HCI then moved for summary judgment

on the remaining claims, and the district court granted their

motion in full. Rodrique v. Hearst Commc'ns, Inc., No. 22-cv-

12152,

, at *4 (D. Mass. Feb. 22, 2024).

On appeal, Rodrique challenges only the district court's

grant of summary judgment on his religious discrimination claims

under Title VII and Mass. Gen. Laws ch. 151B, § 4. The district

court held that Rodrique's religious discrimination claims failed

because Rodrique had not established that his opposition to the

COVID-19 vaccine was in fact religious. We affirm the district

court's summary judgment ruling on different grounds.

II. DISCUSSION

A. Standard of Review

Summary judgment is appropriate where the evidence shows

that there are no genuine disputes of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a). We review the district court's grant of summary judgment

de novo, considering the facts in the light most favorable to

Rodrique as the non-moving party and drawing all reasonable

- 7 - inferences in his favor. See, e.g., Boykin v. Genzyme Therapeutic

Prods., LP,

(1st Cir. 2024); MacRae v. Mattos,

(1st Cir. 2024).

B. Religious Discrimination Under Title VII

Title VII declares it an "unlawful employment practice

for an employer . . . to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's . . . religion." 42 U.S.C.

§ 2000e-2(a). Under the statute, religion "includes all aspects

of religious observance and practice, as well as belief, unless an

employer demonstrates that he is unable to reasonably accommodate

to an employee's . . . religious observance or practice without

undue hardship on the conduct of the employer's business." Id.

§ 2000e(j).

Rodrique alleges that Hearst violated Title VII when it

denied his request for a religious exemption from its COVID-19

vaccination requirement and subsequently terminated his employment

for refusing to receive the vaccine. We "appl[y] a two-part

framework in analyzing religious discrimination claims under Title

VII." Lowe v. Mills,

(1st Cir. 2023) (quoting

Sánchez-Rodríguez v. AT & T Mobility P.R., Inc.,

(1st Cir. 2012)). At the initial step, a plaintiff "must make [a]

prima facie case that a bona fide religious practice conflicts

- 8 - with an employment requirement and was the reason for the adverse

employment action."

(underlining omitted) (quoting Sánchez-

Rodríguez,

). "[T]he burden then shifts to the

employer to show that it offered a reasonable accommodation or, if

it did not offer an accommodation, that doing so would have

resulted in undue hardship."

(alteration in original) (quoting

Cloutier v. Costco Wholesale Corp.,

(1st Cir.

2004)).1

The district court, without reaching the issue of

whether granting the exemption request would have imposed an undue

hardship on Hearst, determined that Rodrique had not made out his

prima facie case. See Rodrique,

, at *2.

Specifically, it concluded that Rodrique's asserted religious

beliefs were not religious at all and instead reflected "a personal

medical judgment about the necessity of COVID-19 vaccination"

expressed in religious language.

In its ruling, the court

relied in part on the fact that Rodrique admitted to taking other

1 The district court did not provide a separate analysis of Rodrique's religious discrimination claim under Mass. Gen. Laws ch. 151B, § 4. On appeal, Rodrique does not quibble with the district court's approach and describes Chapter 151B as a Title VII "cognate." As neither party has identified relevant differences between religious discrimination claims under Title VII and Chapter 151B, nor provided any analysis specific to Chapter 151B, we treat the claims as rising and falling together. See Tang v. Citizens Bank, N.A.,

, 215 n.9 (1st Cir. 2016) (declining to provide a separate 151B analysis where the parties had not described any meaningful distinction between the statutes).

- 9 - medications when he viewed them as medically necessary, without

questioning whether they were developed with fetal cells and

despite knowing that they were artificial and man-made.

It

also concluded that the record contained no credible medical

evidence that the COVID-19 vaccines were developed using fetal

cells.

at *2 n.6.

Determining whether a belief is religious is "a

difficult and delicate task." Cloutier,

(quoting

Thomas v. Rev. Bd. of Ind. Emp. Sec. Div.,

(1981)); see also Fallon v. Mercy Cath. Med. Ctr. of Se. Pa.,

(3d Cir. 2017). But this case does not require us

to grapple with this difficult issue. On appeal, we are free to

affirm the district court's ruling "on any ground made manifest by

the record, including one not reached by the District Court."

Walsh v. TelTech Sys., Inc.,

(1st Cir. 2016);

see also Cloutier, 390 F.2d at 128 (affirming summary judgment for

employer in religious discrimination case under Title VII on

alternative undue hardship argument). We are especially well

positioned to affirm on an alternative ground where, as here, the

parties have argued and addressed that alternative ground on

appeal. See Germanowski v. Harris,

(1st Cir.

2017). We therefore assume, without deciding, that Rodrique's

objection to the COVID-19 vaccine was religious. We nevertheless

affirm the district court's ruling on undue hardship grounds.

- 10 - Turning then to the undue hardship inquiry, we note that

Hearst admits that it never offered to accommodate Rodrique's

religious beliefs. Thus, to succeed on summary judgment and avoid

Title VII liability, Hearst must show that there was no genuine

dispute of material fact that granting Rodrique's exemption

request would have imposed an undue hardship on its business. See

Lowe,

. In Groff v. DeJoy, the U.S. Supreme Court

clarified that the undue hardship standard requires the employer

to "show that the burden of granting an accommodation would result

in substantial increased costs in relation to the conduct of its

particular business."

, 470 (2023).

This case, however, does not turn on whether the costs

of any accommodation would have been substantial in relation to

the conduct of WCVB-TV's business. Hearst has averred that

in-person work was an essential aspect of Rodrique's job as a

photographer, providing separate field crew vehicles for offsite

shoots was a substantial expense, paying for Rodrique's weekly

COVID-19 tests was costly, and abiding last-minute isolation of

employees in cases of infection would have strained WCVB-TV's

resources, especially given the job's frequent daily deadlines and

tight time constraints. On appeal, Rodrique does not dispute that

these claimed burdens and expenses would be substantial for WCVB-

TV's business.

- 11 - Instead, Rodrique contends that Hearst has not proffered

admissible evidence showing that the vaccine actually protects

against the transmission of COVID-19. As Rodrique frames the

issue, if the vaccine does not reduce the likelihood of COVID-19

transmission -- as opposed to merely mitigating symptoms, for

example -- then Hearst suffers no undue hardship by granting him

an exemption.2 And in Rodrique's view, only expert testimony can

support this conclusion. Rodrique emphasizes that proving if and

how the vaccine works is a scientific question, and he points us

to the Supreme Court's decision in Bragdon v. Abbott,

(1998), to guide our analysis.

With Bragdon in mind and having reviewed the record, we

disagree with Rodrique that Hearst did not provide legally

sufficient evidence to demonstrate that vaccination reduces the

likelihood of transmitting the virus. "Undue hardship under Title

VII requires employers 'to accommodate, within reasonable limits,

the bona fide religious beliefs and practices of employees.'"

Bazinet v. Beth Israel Lahey Health, Inc.,

(1st

Cir. 2024) (quoting Sánchez-Rodríguez,

). Because

the record demonstrates that Hearst relied "on the objective,

scientific information available to [it]," with particular

2 At oral argument, Rodrique forthrightly conceded that if the undisputed record evidence demonstrates that the COVID-19 vaccine reduces the likelihood of virus transmission, his undue hardship argument would fail.

- 12 - attention to "the views of public health authorities," we hold

that it acted reasonably when it determined that vaccinated

employees are less likely to transmit COVID-19 than unvaccinated

employees. See Bragdon,

.

Rodrique argues, however, that Hearst needed to do more

than rely on objective medical evidence, including public health

guidance. In Rodrique's view, each employer should be required to

prove to a factfinder in every similar Title VII litigation that

the vaccine reduces the likelihood of transmitting the virus. But

Rodrique points to no authority suggesting that this is what Title

VII requires. In fact, Bragdon counsels the opposite approach.

Bragdon is an Americans with Disabilities Act (ADA)

case. See

. Under section 302 of the ADA, an

entity need not accommodate an individual with a disability if

they "pose[] a direct threat to the health or safety of others."

(b)(3). In Bragdon, the Supreme Court considered

whether a dentist violated the ADA when he declined to treat a

patient with HIV.

. The Court did not hold

that, in order to prevail, the dentist had to prove to the

factfinder that HIV could be transmitted during a dental procedure.

Rather, the Court explained, he needed to demonstrate that his

decision to decline treatment was "reasonable in light of the

available medical evidence."

. That objective medical

evidence included "the views of public health authorities, such as

- 13 - the U.S. Public Health Service, CDC, and National Institutes of

Health," which the Court described as "of special weight and

authority."

Although noting that the medical guidance of

U.S. public health organizations was not conclusive, the Court

stated that a party who disagrees with the "prevailing medical

consensus" would have to "refute it by citing a credible scientific

basis for deviating from the accepted norm."

Critically, the

Court cabined the relevant inquiry to the medical and scientific

evidence available at the time the dentist made his decision.

. Thus, the logic of Bragdon, which Rodrique contends we

should apply, would not require Hearst to prove to a factfinder

that vaccinated workers are less likely to transmit the virus in

the workplace. Instead, it would require Hearst to demonstrate

that it looked to the objective medical evidence available to it

in the fall of 2021 in reasonably concluding that the vaccine

reduces the likelihood of transmitting COVID-19, and that

therefore granting Rodrique an exemption would have caused it undue

hardship.

The record is replete with undisputed evidence that

Hearst reasonably relied on objective medical evidence, including

public health guidance from the federal government and the

Commonwealth of Massachusetts, when it set its vaccine policy.

For example, Hansen explained in her declaration in support of

summary judgment ("Hansen Declaration") that the Committee paid

- 14 - attention to CDC guidance, including its "different quarantine and

testing requirements based on vaccination status," and concluded

"that vaccination proved to be one of the best protective measures

against the spread of COVID-19 and would keep [HTV's] workforce

healthy and safe while allowing [HTV's] stations to continue

operating." In turn, the relevant CDC guidance in the second half

of 2021 explained that "a growing body of evidence suggests that

fully vaccinated people are less likely to have asymptomatic

infection or transmit [COVID-19] to others." CDC, Interim Public

Health Recommendations for Fully Vaccinated People (July 21,

2021), https://perma.cc/5SLP-MFS2.3 Hearst similarly stated in

its responses to Rodrique's interrogatories that it concluded the

vaccine reduces the likelihood of transmission because of

"publicly available findings and updates from the CDC and other

government agencies," and that Hearst "had communications with the

Massachusetts Government concerning its plans for keeping its

employees safe during the COVID-19 pandemic." And company

communications implementing the vaccine requirement pointed out

that it was "in keeping with the overwhelming opinion of the

medical science community," that the company had defined "fully

3 We can take judicial notice of what information was available on government websites at a particular time. See In re Fin. Oversight & Mgmt. Bd. for P.R.,

, 13 n.3 (1st Cir. 2023); Child.'s Health Def., Inc. v. Rutgers, the State Univ. of N.J.,

, 71 n.3 (3d Cir. 2024).

- 15 - vaccinated" to align with the CDC's definition, and that the

company's leadership was "monitor[ing] guidance from all

applicable public health authorities." It was reasonable for

Hearst to rely on these sources to conclude that the vaccine

reduces the likelihood of transmitting the virus, and therefore

that exempting employees from the vaccination requirement would

pose a threat to the health of others. See also EEOC, What You

Should Know About COVID-19 and the ADA, the Rehabilitation Act,

and Other EEO Laws § L (Mar. 1, 2022), https://perma.cc/QR9N-KCSP

(assuming, in EEOC Title VII guidance, that employers may consider

"the risk of the spread of COVID-19 to other employees or to the

public" as costs of permitting unvaccinated employees to remain in

the workplace).

Rodrique argues that Hearst's evidence consists entirely

of inadmissible lay opinion, but we do not agree. Pointing to the

Hansen Declaration, he contends that Hearst is relying heavily on

the opinion of one of its employees. Because Hansen was not

qualified as an expert witness, Rodrique suggests, she was not

permitted to provide her opinion about scientific matters like the

ability of the COVID-19 vaccine to reduce the likelihood of viral

transmission. In making this argument, he relies on Federal Rule

of Evidence 701, which permits non-expert witnesses to offer

opinions when they are "rationally based on the witness's

- 16 - perception" but not when they are "based on scientific, technical,

or other specialized knowledge." Fed. R. Evid. 701(a), (c).

But Hansen's statements were not opinions at all, let

alone opinions based on scientific or technical knowledge. Her

statement that the Committee, of which she was a member, "was

involved in reviewing [company] practices and adjusting them as

additional information became known, including . . . medical

data[ and] CDC guidance," was a factual statement based on her

experience in her Human Resources role. See United States v.

DiMarzo,

(1st Cir. 1996) (distinguishing

statements of fact from opinions). Hansen's subsequent statement

that "the Committee believed that vaccination [was] one of the

best protective measures against the spread of [] COVID-19" is

also not an opinion because it merely describes Hearst's

conclusion. See United States v. Powers,

(1st Cir.

2012) (holding that a witness did not proffer inadmissible opinion

testimony when recounting his understanding of a factual issue);

United States v. Morton,

(D.C. Cir. 2004)

(holding that testimony about a witness's belief was not opinion

testimony when offered to prove the witness's reason for behaving

in accordance with that belief). It is therefore outside the scope

of Rule 701.

Moreover, Rodrique's undue hardship argument fails

because no medical evidence in the summary judgment record

- 17 - contradicts Hearst's conclusion that vaccinated people are less

likely to infect others. Rodrique himself introduced into the

record a Los Angeles County web page stating that "[v]accinating

not only protects you, but may also protect your family, friends,

and those in our community most vulnerable to severe disease from

COVID-19." He also submitted an academic journal publication that

found "[v]accination reduces the risk of delta variant infection

and accelerates viral clearance." There is nothing in the record

to the contrary.4

Thus, we conclude that there is no genuine dispute of

material fact related to Hearst's undue hardship defense. To be

clear, our holding is a narrow one. It arises from the unique

posture of this case, where Rodrique has staked his undue hardship

argument on his claim that Hearst has not presented competent

evidence that vaccinated people are less likely to transmit

COVID-19. Because Rodrique has not challenged Hearst's evidence

that accommodating his exemption request would be a substantial

burden if the vaccine does reduce the likelihood of transmitting

4 In his reply brief, Rodrique points to several sources outside the record in an attempt to establish that the COVID-19 vaccine does not reduce the risk of transmission. However, none of these sources were before the district court. See Geoffroy v. Town of Winchendon,

(1st Cir. 2020) ("[W]e do not rely on any facts not before the district court at summary judgment.").

- 18 - the virus, Hearst is entitled to summary judgment on Rodrique's

religious discrimination claims.5

III. CONCLUSION

For all these reasons, we affirm the district court's

grant of summary judgment for Hearst.

5 Both parties agree that Rodrique did not appeal the portion of the district court's judgment related to his claims against HCI, and, as a result, HCI is not a proper party to this appeal, even though it is listed in the case caption. Thus, we say nothing more on this score.

- 19 -