t: 949-476-9400 pacific justice institute

PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW

CAUSE WHY MOTION FOR PRELIMINARY INJUNCTION SHOULD NOT ISSUE RE CITY OF LOS

ANGELES EXEMPTION REQUEST PROCEDURES

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Daniel R. Watkins (SBN 163571)

[email protected]

WATKINS & LETOFSKY, LLP

2900 S. Harbor Blvd., Suite 240

Santa Ana, CA 92704

T: 949-476-9400

Kevin T. Snider (SBN 170988)

[email protected]

PACIFIC JUSTICE INSTITUTE

P.O. Box 276600

Sacramento, CA 95827-6600

T: 916-857-6900

Attorneys for Plaintiffs, MICHELLE LEMONS, RODGINALD CAYETTE,

MICHAEL PUNO, SUSANA REYNOSO, ANA FUENTES, MICHAEL PARKS,

EVLIN AKSERELIAN, MATTHEW GONZALEZ, PATRICIA GONZALEZ,

LAURISSA PROVOST, SUSAN GARCIA, CHRISTOPHER SILVA,

GEORGINA GRIEGO

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHELLE LEMONS, RODGINALD

CAYETTE, MICHAEL PUNO,

SUSANA REYNOSO, ANA

FUENTES, MICHAEL PARKS, EVLIN

AKSERELIAN, MATTHEW

GONZALEZ, PATRICIA GONZALEZ,

LAURISSA PROVOST, SUSAN

GARCIA, CHRISTOPHER SILVA,

GEORGINA GRIEGO

Plaintiffs, vs.

Case No.: 2:21-cv-07296-RGK-JPR

PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY MOTION FOR PRELIMINARY INJUNCTION SHOULD NOT ISSUE RE CITY OF LOS ANGELES EXEMPTION REQUEST PROCEDURES

Case 2:21-cv-07296-RGK-JPR Document 29 Filed 10/24/21 of 30 Page ID #:164

mailto:[email protected]

mailto:[email protected]

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CITY OF LOS ANGELES; ERIC

GARCETTI, Mayor of City of Los

Angeles; MICHAEL MOORE, Chief

of the Los Angeles Police Department;

MATTHEW SZABO, Los Angeles

City Administrative Officer; and

DOES 1-50, inclusive. Defendants.

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT Plaintiffs hereby apply to the Court pursuant

to Federal Rule of Civil Procedure 65 and Local Rule 65-1 for a Temporary

Restraining Order enjoining Defendants from enforcing the City of Los Angeles’

(“City”) “COVID-19 VACCINATION REQUIREMENT EXEMPTION REQUEST

PROCEDURES” (“Exemption Procedures”) against Plaintiffs and other City

employees, in particular Los Angeles Police Department (“LAPD”) personnel.

The last day to submit the requests for accommodation under the Exemption

Procedures is October 20, 2021. The City’s Exemption Procedures require City

employees including Plaintiffs and other LAPD personnel to use specific religious

exemption request forms and medical exemption request forms that violate their

constitutional and statutory religious and/or medical rights. In addition, while the

Exemption Procedures require Plaintiffs and other LAPD personnel to submit

requests for exemptions, as of this filing, the City has yet to provide a process for

this. As such, Plaintiffs and other LAPD personnel cannot file their requests for

exemptions and they are now non-compliant with the Ordinance, subject to adverse

employment actions. City’s failure to provide a reasonable time and method to submit

requests for religious and medical accommodations, to engage in a meaningful

interactive process, and its failure to grant reasonable accommodations violates both


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the Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, and

the Americans with Disabilities Act.

As such, Plaintiffs require [1] an injunction mandating the City to either

immediately activate an online portal and/or designate and individual or department

to accept for consideration any written request for a Title VII, FEHA, or ADA

accommodation, whether by e-mail, letter, facsimile, or hand delivery; [2] an

injunction to restrain the City from requiring submission of a “Religious

Accommodation Certification Form” to obtain third party verification as to whether

an employee is a “member of a religious organization or religious belief system”; and

to restrain the City from requiring use of its designated Religious Exemption Form;

[3] an order enjoining the Defendants from unlawfully restricting the meaning of

disability and interfering with the independent medical opinion of Plaintiffs’

physicians; and [4] an injunction prohibiting the City from taking any adverse

employment action against employees for not receiving the COVID-19 vaccine until

Title VII/FEHA/ADA requests have received full consideration.

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This application is made on the grounds set forth in the accompanying

memorandum of points and authorities; expert declarations and Exhibits in support;

all pleadings and papers filed in this action; the argument of counsel; and further

evidence as the Court may consider at or before a hearing regarding this Application

or the hearing regarding the Order to Show Cause and preliminary injunction

requested herein.

DATED: October 21, 2021 WATKINS & LETOFSKY, LLP

/s/ Daniel R. Watkins

By: ___________________________

Daniel R. Watkins


Santa Ana, CA 92704

Attorneys for Plaintiffs

DATED: October 21, 2021 PACIFIC JUSTICE INSTITUTE

/s/ Kevin T. Snider

By: ___________________________

Kevin T. Snider

P.O. Box 276600







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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................ 5

TABLE OF AUTHORITIES ...................................................................................6

INTRODUCTION…………………………………………................................... 10

SUMMARY OF ARGUMENT............................................................................... 10

a. Exemptions Procedures…………………..…………………………………10

b. Religious Accommodations…..……………….…………………………….11

c. Medical Exemptions...………………………………………………………11

BACKGROUND .................................................................................................... 12

LEGAL ARGUMENT ............................................................................................ 18

A. Legal Standard for Temporary Restraining Order and Preliminary Injunction

.................................................................................................................................. 19

B. Plaintiff Are Likely To Succeed on the Merits

................................................................................................................................. 19

1. Violations of the Title VII, the California Fair Employment and Housing Act and

Americans with Disability Act Consent ................................................................. 20

a. Requests for Religious Exemptions .................................................................... 20

b. Requests for Medical Exemptions ...................................................................... 22

C. Irreparable Harm Without Injunctive Relief ...................................................... 23

D. Plaintiff’s injury outweighs any potential hardship to City ............................... 25

E. Granting the Injunction Will Serve the Public Interest......................................... 26

CONCLUSION ....................................................................................................... 28





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TABLE OF AUTHORITIES

CASES PAGE

Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 452 (7th Cir. 2013) …… 20

ADT v. Capital Connect, 145 F. Supp. 3d 671, 694 (N.D. Tex. 2015) …………. 23

All for the Wild Rockies v. Cottrell, 632 F.3d at 1131 …………………………. 25

Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) …………………………. 22

Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir.

1988)…………………………………………………………………………….. 23

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993)

……………………………………………………………………..….………… 20

Cooper v. General Dynamics, 533 F.2d 163, 166 n.4 (5th Cir. 1976) ………….. 20

Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir.

1995) ……………………………………………………………………………. 25

Elrod v. Burns, 427 U.S. 347, 373 (1976) ……………………………………….. 22

Frazee v. Illinois Employment, 489 U.S. 829, 834 (1989) ……………………… 19

Enyart v. Nat’l Conf. of Bar Exam’rs, 630 F.3d 1153, 1167 (9th Cir. 2011) …… 26

Frazee v. Ill. Dep’t of Emp’t Sec., 489 U.S. 829, 834 (1989) …………………… 21

G & V Lounge, Inc., 23 F.3d at 1079 ……………………………………………. 25

Harvest Rock Church, Inc. v. Newsom, 141 S. Ct. 889 (2020) …………………. 26

IAM v. Boeing, 833 F.2d 165, 168-70 (9th Cir. 1987), cert. denied; Callahan v.

Woods, 658 F.2d 679 (9th Cir. 1981) …………………………………………… 19

Ibid. Ariz. Dream Act Coalition v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014 .. 23





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L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1203 (9th

Cir. 1980) ……………………………… ………………………………………. 24

Legend Night Club v. Miller, 637 F.3d 291, 302–03 (4th Cir. 2011) ……………24

Lyon v. Illinois High Sch. Ass’n, No. 13-CV-00173, 2013 WL 140926, at *5 (N.D.

Ill. Jan. 10, 2013) ……………………………………………………………….. 27

Moussazadeh v. Tx. Dep’t of Crim. Just., 703 F.3d 781, 790 (5th Cir. 2012) …... 20

Motor Vehicle Bd. of Cal. v. Orrin W. Fox, et al., 434 U.S. 1345, 1347 n. 2 (1977)

…………………………………………………………………………………... 18

Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008) ……………………….…… 23

Newsome v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) …………………………. 22

Order, Dr. A., No. 21-cv-10009 (N.D.N.Y. Sept. 13, 2021) ……………………. 26

Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 2014) ………. 18

Ramsay v. Nat’l Bd. of Med. Exam’rs, No. 19-CV-2002, 2019 WL 7372508, at *19

(E.D. Pa. Dec. 31, 2019) ………………………………………………………… 27

Reid v. Hood, No. 1:10CV2842, 2011 U.S. Dist. LEXIS 7631, at *4-5 (N.D. Ohio

Jan. 26, 2011) …………………………………………………………………… 18

Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) ………………………………… 26

Roman Catholic Diocese, 141 S. Ct. at p. 68 ………………………………...…. 25

Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) …………… 26

S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021) ………….. 26

Tandon v. Newsom, 141 S. Ct. 1294 (2021) …………………………………….. 26

Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 714 (1981) ……… 20

Thomas v. Review Bd., 450 U.S. 707, 715-16 (1981) …………………………… 20





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Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) ………………………26

U.S. v. Ballard, 322 U.S. 78, 86-7 (1944) …………………………………….… 20

Ward v. Walsh, 1 F.3d 873, 876 (9th Cir. 1993) ……………………………….. 25

Wilson v. NLRB, 920 F.2d 1282,1287 (6th Cir. 1990) ………………………..… 20

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ……………… 18

Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) ………… 24

Wisconsin v. Yoder, 406 U.S. 205, 214 (1972) …………………………………. 25

Young v. Southwestern Savings and Loan, 509 F.2d 140 (5th Cir. 1975) ……… 19

968 F.3d 251 (3d Cir. 2020), cert. denied, 141 S. Ct. 1517 (2021) ………… …. 27

STATUTES

California Code of Civil Procedure §4.701(b)……………………………...….… 19

California Code of Civil Procedure §4.701(c) ………………………………….. 11

California Code of Civil Procedure §4.702 ……………………………………... 11

California Code of Civil Procedure §4.702(a) ………………………………….. 11

California Code of Civil Procedure §4.702(b) ………………………………….. 11

California Code of Civil Procedure §4.704 (a)(2) ……………………………… 11

California Code of Civil Procedure §4.705 …………………………………….. 12

California Government Code §11065 …………………………………………… 21

California Government Code §12900 et seq. …………………………………… 19

California Government Code §12940(1) ………………………………..…........ 18

California Government Code §12940(2) ………………………………..…........ 19

California Government Code §12940(b) ……………………………………….. 18





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California Code of Regulations §7293 ……………………………………..…… 19

42 U.S.C. §2000e et seq ……………………………………………………….… 18

42 U.S.C. 2000e-2(c)(1) ………………………………………..………..…….... 18

42 U.S.C. §2000e(j) …………………………………………………………. 18, 19

29 C.F.R §1605 …………………………………………………………………..19

§503 of the Rehabilitation Act of 1973 …………………………..…………….. 21

§188 of the Workforce Innovation and Opportunity Act ……………….……… 21





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INTRODUCTION

The Defendants (or “City”) seek to purge two unwanted minority groups from

the municipal payroll. People of faith -- whose conscience will not allow them to

ingest COVID-19 vaccines -- are required to submit a request for a religious

accommodation or face adverse employment consequences. Unfortunately for the

faithful, the Defendants completed failed to establish a process by which they could

submit their requests and the time to submit the request has expired. What is more,

the City of Angels has unleashed an inquisitional process to identify and terminate

religious heretics who do not strictly follow the doctrine and dictates of their places

of worship. Then there are the medically vulnerable. The City deprives those with

disabilities, who fear for their health due to vaccination, of the independent medical

judgment of their physicians who could either confirm or assuage their distress after

a review of personal medical histories and examinations. As the clock continues to

tick, time will soon run out on these Plaintiffs who will be left without work absent

intervention by this Court.

SUMMARY OF THE ARGUMENT

There are three reasons that the City’s requirements for submission of requests for

a religious and/or medical accommodations are unlawful and immediate relief is

necessary.

a. Exemptions Procedures

First, the City requires that employees submit requests for religious and

medical accommodation without providing the employees a process to submit the

requests. The deadline for submission was October 20, 2021. Plaintiffs are thus

deprived of an opportunity to exercise their statutory rights under Title VII, the Fair

Employment and Housing Act (“FEHA”) and Americans With Disabilities Act

(“ADA”). As such, the Plaintiffs require an injunction mandating the City to either

immediately activate an online portal and/or designate and individual or department


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to accept for consideration any written request for a Title VII, FEHA, or ADA

accommodation, whether by e-mail, letter, facsimile, or hand delivery.

Further, the Plaintiffs require an injunction prohibiting the City from taking

any adverse employment action against employees for not receiving the COVID-19

vaccine until Title VII/FEHA/ADA requests have received full consideration.

b. Religious Accommodations

Second, an injunction is necessary to restrain the City from requiring

submission of a “Religious Accommodation Certification Form” to obtain third party

verification as to whether an employee is a “member of a religious organization or

religious belief system”; and to restrain the City from requiring use of its designated

Religious Exemption Form as the Form solicits questions calculated to determine

whether the religious adherent has a “correct” or “proper” or “valid” understanding

of religious doctrine or that beliefs are shared broadly among other faithful. But, the

Constitution knows no heresy. A secular inquisition to finger the unorthodox within

their own faith tradition misconstrues First Amendment doctrine and cannot

withstand strict scrutiny. The free exercise clause – and by extension Title VII and

FEHA – also applies to individuals, not just religious institutions. An immediate

injunction to prohibit the use of these Forms is necessary to protect Plaintiffs from

being subject to adverse employment actions due to their personal religious

convictions about ingesting the COVID-19 vaccine.

c. Medical Exemptions

Immediate relief is also required to enjoin limitations on medical exemptions.

The City’s medical form constrains the independent medical judgment of the

Plaintiffs’ physicians as to the specific risks and efficacy of the COVID-19 vaccine

to a Plaintiff-patient. To this end, the City medical exemptions are confined to

contraindications by the Center for Disease Control and vaccine manufacturers.

Neither the CDC nor a vaccine manufacturer will have examined a patient or even


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skimmed the patient’s medical history. What is more, the City excises the term

disability from the Americans with Disabilities Act and the FEHA which is

significantly broader than the “contraindications” set by either CDC or vaccine

manufacturers. The Plaintiffs seek an order enjoining the Defendants from

unlawfully restricting the meaning of disability and interfering with the independent

medical opinion of Plaintiffs’ physicians.

BACKGROUND

Scope of City of Los Angeles Mandate

On July 27, 2021, Los Angeles Mayor Eric Garcetti and City Council President

Nury Martinez announced “that they would push for mandatory COVID-19 vaccines

for City employees, beginning with a requirement that workers either submit proof

of vaccination or a weekly negative test.”1 Mayor Garcetti stated further in his July

27, 2021, announcement, “This urgent need means that if you’re a City employee,

we’re now going to require you to either show that you’re vaccinated or take a weekly

test, and we’re committed to pursuing a full vaccine mandate. (Emphasis added.)

On August 20, 2021, Mayor Garcetti signed and approved Ordinance No.

1871342 (herein “Ordinance”).2 Among other things, the Ordinance mandates at Sec.

4.701(b) that “as of October 20, 2021, the COVID-19 vaccination and reporting

requirements are conditions of City employment and a minimum requirement for all

employees, unless approved for an exemption from the COVID-19 vaccination

requirement as a reasonable accommodation for a medical condition or restriction or

sincerely held religious beliefs. Any employee that has been approved for an

exemption must still report their vaccination status.” (Emphasis added.)

1 A complete copy of the Mayor’s statement dated July 27,2021 is located at Mayor Garcetti, Council President

Martinez push toward mandatory vaccines for City employees | Office of Los Angeles Mayor Eric Garcetti

(lamayor.org) 2 A copy of the memorandum, Form Gen. 160A, regarding “MANDOATROY COVID-19 VACCINATION

ORDINANCE”, Report No. R21-0252 from the City Attorney, a report of the “OFFICIAL ACTION OF THE LOS

ANGELES CITY COUNCIL”, and Ordinance 187134 are attached as EXHIBIT 1.


https://www.lamayor.org/mayor-garcetti-council-president-martinez-push-toward-mandatory-vaccines-city-employees



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Sec. 4702 of the Ordinance allows “Qualified Exemptions” from the

mandatory vaccination policy for “Employees with medical conditions/restrictions or

sincerely held religious beliefs, practices, or observances that prevent them from

receiving a COVID-19 vaccine.” Sec. 4702(a). Employees who qualify for “medical

or religious exemptions and who are required to regularly report to a City worksite

shall be subject to weekly COVID-19 tests.” Sec. 4701(b). The Ordinance further

mandates at Sec. 4.701(c) that “Requests for exemption from the COVID-19

vaccination must be submitted no later than September 7, 2021.”

Section 4702 of the Ordinance goes on to state that “The City’s goal is to have

a vaccinated workforce. As such, employees will not have the option to ‘opt out’ of

getting vaccinated and become subject to weekly testing. Only those with a medical

or religious exemption and who are required to regularly report to a work location

are eligible for weekly testing.” (Emphasis added.)

Implementation of the Ordinance

While Mayor Garcetti charged each department head with verifying and

keeping track of their employees’ vaccination status, the City initially failed to

provide the department heads any guidance on how to implement the Ordinance, in

particular the process for submitting, reviewing, and determining requests for

medical and religious accommodations. Despite the requirements of the Ordinance

demanding submission of requests for medical or religious exemptions by September

7, 2021, and the protections afforded to employees under Title VII, FEHA, and ADA

neither the City nor the Police Department provided Plaintiffs or any LAPD personnel

a procedure or means to submit requests for medical or religious exemptions. (See

Declaration of Susan Garcia attached as Exhibit 2, at ¶ 5, 6; Declaration of Evlin

Akserelian attached as Exhibit 3 at ¶ 4, 5.)

This failure continued from August 20, 2021, the date of signing of the

Ordinance, to September 7, 2021, the date by which all exemptions must be


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submitted. (See Exhibit 2, at ¶ 5, 6; and Exhibit 3 at ¶ 4, 5.) During the

implementation time, the City relied on wearing masks for unvaccinated people as

the primary means of protecting the peace, health, and safety of the employee, fellow

employees, or the community. (See Exhibit 2, at ¶ 10; and Exhibit 3 at ¶ 9.)

Plaintiffs are informed and believe that from August 20, 2021, through

September 7, 2021, the City did not identify a process for employees to submit their

requests. Plaintiffs and hundreds of LAPD personnel, attempted to submit requests

for medical or religious exemptions. The Police Department refused to accept

submissions and as of the filing of this action, the Police Department has not

processed any the requests for exemption submitted by employees within the

department. (See Exhibit 2, at ¶ 5, 6; and Exhibit 3 at ¶ 4, 5.)

On Friday, September 10, 2021, Defendants issued a statement indicating that

employees could submit their requests for exemption through an online portal. The

policy requires employees to submit their requests no later than close of business on

Monday, September 13, 2021. (See Email from DOC at LAPD - Intent to File

COVID-19 Vaccination Exemption Form - Extended to September 13, 2021 attached

as Exhibit 4.) The City’s plan to stop accepting requests for medical and religious

exemptions after a short 72-hour window to file such exemptions, which occurred

over a weekend, clearly violates and interferes with the employees’ rights to request

accommodation for medical or religious reasons. The ridiculously small window of

time to submit a request for accommodation reveals the City’s intent to interfere with

the employees’ rights and to not engage in the interactive process for these requests

for accommodation, to coerce vaccination to drive the number closer to a “fully

vaccinated workforce”.

Expressing his true animus toward employees seeking religious or medical

accommodations for the vaccine, Mayor Garcetti was quoted on September 14, 2021,

“This policy allows for medical and religious exemptions to protect certain workers'


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health and constitutional rights, but let me be absolutely clear: We will not tolerate

the abuse of these exemptions by those who simply don't want to get vaccinated.''3

“To anyone thinking about filing a disingenuous exemption request, I strongly urge

that you reconsider. Every request will be carefully vetted, and our goal will always

be to get as many Angelenos vaccinated as possible,” Garcetti’s statement continued.4

On Thursday, September 30, 2021, Defendants crystalized their intent to

coerce employees to be vaccinated, and their total indifference toward legitimate

requests for religious accommodation when they distributed to Plaintiffs and other

LAPD personnel the “COVID-19 VACCINATION REQUIREMENT EXEMPTION

REQUEST PROCEDURES” (“Exemption Procedures”). Under the section

“PROCEDURE FOR REQUESTING A RELIGIOUS EXEMPTION” the City

expressly states “1. The employee must complete and sign the Request for Religious

Exemption Form. The employee must also submit a completed Religious

Accommodation Certification Form from their religious organization, religious

leader, religious scholar, or person knowledgeable of their religious beliefs, practice

or observances to support their request.” (Emphasis added.) (See COVID-19

VACCINATION REQUIREMENT EXEMPTION REQUEST PROCEDURES

attached as Exhibit 5.)

The “EMPLOYEE REQUEST FOR REASONABLE ACCOMMODATION

RELIGIOUS EXEMPTION REQUEST FORM” (“Religious Exemption Form”)

specifically states that “To be eligible for this exemption, [the employee must]

complete and submit both this form and a completed Religious Accommodation

Certification Form.” The Religious Exemption Form asks several unlawful questions

designed to determine whether the employee has a “correct” or “proper” or “valid”

understanding of religious doctrine, or whether an employee’s sincerely held

3 Nearly 11% of LA City Employees Plan To Seek Exemption From Vaccine Mandate | KFI AM 640 (iheart.com) 4 Thousands of LA Workers Fail to Provide Vaccine Proof or Request Exemptions – NBC Los Angeles


https://kfiam640.iheart.com/content/2021-09-14-nearly-11-of-la-city-employees-plan-to-seek-exemption-from-vaccine-mandate/

https://www.nbclosangeles.com/news/coronavirus/los-angeles-city-employees-vaccine-vaccination-proof-mandate-lapd-lafd-eric-garcetti-coronvirus-covid-19/2692027/?_osource=db_npd_nbc_knbc_eml_shr

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religious beliefs are shared broadly among other faithful. With this form, Defendants

completely ignore the legal protections afforded employees in that their religious

beliefs need not be acceptable, logical, consistent, or comprehensible, etc. to others

in order to merit [legal] protection. (See EMPLOYEE REQUEST FOR

REASONABLE ACCOMMODATION RELIGIOUS EXEMPTION REQUEST

FORM attached as Exhibit 6.)

The Defendants did not stop with the unlawful questions in the Religious

Exemption Form. Along with the Religious Exemption Form, the Defendants are

requiring the employees to submit a “RELIGIOUS ACCOMMODATION

CERTIFICATION FORM” (“Religious Accommodation Certification Form”). (See

RELIGIOUS ACCOMMODATION CERTIFICATION FORM (“Religious

Accommodation Certification Form”) attached as Exhibit 7.) This form requires the

employee to obtain third party verification under the penalty of perjury not only with

respect to whether the employee has a sincerely held religious belief but including

whether the employee is actually “a member of a religious organization or religious

belief system”, among many other unlawful items. This requirement violates to the

protections of the Free Exercise Clause and the process for obtaining a religious

accommodation pursuant to FEHA and Title VII.

In addition, the MEDICAL EXEMPTION OR VACCINATION

DEFERMENT5 form required by the Defendants expressly limits the type of medical

condition or disease that a licensed physician may use to request a medical

accommodation that the employee not be vaccinated. The form explains “To be

eligible for a Medical Exemption/Vaccination Deferment, you must check the box on

Page 2 next to the circumstance that applies to the basis for your request. A

completed Healthcare Provider Statement Supplemental Form must be

submitted with this Exemption Request Form.” (Emphasis in original.) Only one

5


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of the options the employee may check involves medical conditions other than

COVID as possible reasons for a medical accommodation. That option states:

Section A: Request for Medical Exemption Due to Contraindication

or Precaution

The contraindications or precautions to COVID-19 vaccination

recognized by the CDC or by the vaccines’ manufacturers apply to me,

based on my disability or medical condition, with respect to all available

COVID-19 vaccines. For that reason, I am requesting an exception to

the COVID-19 vaccination requirement based on a medical exemption.

My request is supported by the attached certification from my health

care provider. I understand that the certification must be signed by a

licensed physician.

(See MEDICAL EXEMPTION OR VACCINATION DEFERMENT

form attached as Exhibit 8.)

The REQUEST FOR HEALTHCARE PROVIDER STATEMENT

(“Healthcare Provider Statement”) contains a similar limitation with respect to the

scope of conditions justifying a medical accommodation. Specifically, the medical

provider can only “certify that one or more of the contraindications or precautions

recognized by the CDC or by the vaccines’ manufacturers for each of the currently

available COVID-19 vaccines applies to the patient listed above, based on the

patient’s medical status or condition.” (See REQUEST FOR HEALTHCARE

PROVIDER STATEMENT attached as Exhibit 9.)

Extremely concerning is the City presumes it knows better than an employee’s

medical provider on what conditions may require an accommodation that the

employee not be vaccinated. The City specifically limits the medical conditions they

would qualify for an accommodation to those supported by the contraindications or

precautions to COVID-19 vaccination recognized by the CDC or by the vaccines

manufacturer. With this language, the City precludes employees from receiving

recommended accommodation of no vaccination by a medical provider related to


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medical conditions regarding the heart, blood, lungs, joints, kidneys and a multitude

of other organs/systems. This presumption is ludicrous and malicious at the same

time.

On top of this, the Exemption Procedures provide the employee a brief 20-day

window to complete both forms. Plaintiffs maintain sincerely held religious beliefs

and/or medical conditions requiring accommodations and they stand ready to submit

the requests. (See Exhibit 2, at ¶ 3, 4; and Exhibit 3 at ¶ 3.) All exemption forms were

to be submitted no later than October 20, 2021, via a specific online portal controlled

by the City. As of this filing, the online portal is still available. (See Exhibit 2, at ¶ 8,

9; and Exhibit 3 at ¶ 7, 8.) As such, Plaintiffs and other LAPD personnel were not

provided a reasonable time and method to submit their requests for exemptions.

City’s failure to provide a reasonable time and method to submit requests for

accommodations, to engage in a meaningful interactive process, and its failure to

grant reasonable accommodations violates both the FEHA, Title VII and ADA.

LEGAL ARGUMENT

Plaintiffs need immediate injunctive relief from Defendants’ “COVID-19

VACCINATION REQUIREMENT EXEMPTION REQUEST PROCEDURES”

(“Exemption Procedures”). Without such relief, the Plaintiffs and other LAPD

personnel will be required to use requests for religious exemption forms and medical

exemption forms that violate their religious and/or medical rights under the FEHA,

Title VII, and the ADA. In addition, Plaintiffs and other LAPD personnel will be

precluded by the City from timely submitting a request for religious or medical

accommodation because the City has not provided adequate time or an adequate

method to submit the requests as required under the Exemption Procedures. The last

day to submit the requests for accommodation under the Exemption Procedures is

October 20, 2021. As of this filing, the City has yet to provide a process for employees


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to submit requests for exemption. As such, Plaintiffs and other LAPD personnel

cannot file their requests for exemptions.

A. Legal Standard for Temporary Restraining Order and Preliminary

Injunction

To obtain a preliminary injunction, plaintiffs must show (1) they are likely to

succeed on the merits, (2) they will suffer irreparable harm absent injunctive relief,

(3) the balance of the equities tips in their favor, and (4) the public interest favors

injunctive relief. Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir.

2014) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The

standard for issuing a temporary restraining order is logically the same as for a

preliminary injunction with emphasis, however, on irreparable harm given that the

purpose of a temporary restraining order is to maintain the status quo.” Reid v. Hood,

No. 1:10CV2842, 2011 U.S. Dist. LEXIS 7631, at *4-5 (N.D. Ohio Jan. 26, 2011)

(citing Motor Vehicle Bd. of Cal. v. Orrin W. Fox, et al., 434 U.S. 1345, 1347 n. 2

(1977)). Plaintiffs satisfy each of the elements and the goal of this motion is to

maintain the status quo, i.e. maintain Plaintiffs’ employment status and ability to

work using the safety protocols already in place while this litigation is pending.

B. Plaintiffs Are Likely To Succeed on the Merits

1. Violations of the Title VII, the California Fair Employment and

Housing Act and Americans with Disability Act

a. Requests for Religious Exemptions

Codified by 42 U.S.C. §2000e et seq. and California Government Code §12900

et seq., both Title VII and FEHA provide broad workplace protections for people of

sincere religious faith. For instance, it is generally unlawful for an employer to

"exclude or to suspend an employee, or otherwise to discriminate against, any

individual because of his race, color, religion, sex, or national origin." 42 U.S.C.

2000e-2(c)(1). (See also Government Code §12940(b)). Within this framework, both





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Title VII and the FEHA require an employer to reasonably accommodate an

employee’s sincere religious observances and practices, unless such an

accommodation would impose undue hardship. See 42 U.S.C. §2000e(j) and

Government Code §12940(l).

It goes without saying that the City's failure to provide a legitimate and

meaningful opportunity to present a request for religious or medical exemption

violates the employee's rights under Title VII, FEHA and ADA to seek a reasonable

accommodation. The City should not be able to create obstacles and hurdles that

effectively prevent employees from submitting “timely” requests for religious

accommodation to then use the lack of process to deny a request or otherwise take

adverse employment action against the employees.

As to the illegal questions in the required Religious Exemption forms, and the

demand for third party verification under the penalty of perjury not only with respect

to whether the employee has a sincerely held religious belief but with respect to

whether the employee is actually “a member of a religious organization or religious

belief system”, we look again to 42 U.S.C. §2000e(j) which states, "religion" in the

employment context is defined as "all aspects of religious observance and practice,

as well as belief…" A similar definition may be found under California Government

Code §12940(l) and 2 Cal. Code Reg. §7293.1. In view of this broad definition by

Congress and the California Legislature, it cannot be said that any employer covered

by Title VII or FEHA may legally or constitutionally require an employee to belong

to any "bona-fide" religious organization as a condition for receiving an

accommodation. At the very most, an employer may only require that an employee's

asserted religious beliefs be sincere. See, e.g., Frazee v. Illinois Employment, 489

U.S. 829, 834 (1989) ["we reject the notion that to claim the protection of the Free

Exercise Clause, one must be responding to the commands of a particular religious

organization"]; IAM v. Boeing, 833 F.2d 165, 168-70 (9th Cir. 1987), cert. denied;


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Callahan v. Woods, 658 F.2d 679 (9th Cir. 1981); Young v. Southwestern Savings

and Loan, 509 F.2d 140 (5th Cir. 1975); 29 C.F.R §1605. Moreover, the sincerity of

an employee’s stated religious belief is usually not in dispute and is “generally

presumed or easily established.” Moussazadeh v. Tx. Dep’t of Crim. Just., 703 F.3d

781, 790 (5th Cir. 2012). The Courts “are not and should not be in the business of

deciding whether a person holds religious beliefs for the ‘proper’ reasons. We thus

restrict our inquiry to whether or not the religious belief system is sincerely held; we

do not review the motives or reasons for holding the belief in the first

place.” Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 452 (7th Cir. 2013).

Further, the Supreme Court recognizes that employees’ “religious beliefs need

not be acceptable, logical, consistent, or comprehensible to others in order to merit

[legal] protection.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 714

(1981); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 531 (1993) (same). Accordingly, while the employers may compel an employee

to articulate what her religious beliefs are, they are prohibited from requiring the

employee to prove that such beliefs are logical, widely acceptable, consistent, or even

comprehensible. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 715-16 (1981); U.S.

v. Ballard, 322 U.S. 78, 86-7 (1944); Cooper v. General Dynamics, 533 F.2d 163,

166 n.4 (5th Cir. 1976), cert. denied. It is also wrong for the employer to presume

that it is legally empowered to restrict religious accommodations to only those

employees who can “empirically prove” that they are members of a religious

organization with traditional tenets. Allowing the City to make such a restriction is

necessarily discriminatory, and a violation of state and federal law, to the extent that

established religions with official anti-vaccine positions are being favored over

religions with no official positions. See, e.g., Wilson v. NLRB, 920 F.2d 1282,1287

(6th Cir. 1990).


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In this vein, the City is not permitted to determine through the use of an overly

broad and intrusive form like those being used by the City whether a religious

adherent has a “correct” or “proper” or “valid” understanding of religious doctrine,

or whether any employee’s sincerely held religious beliefs are shared broadly among

other faithful. Additionally, though membership in or adherence to the tenets of an

organized religion is plainly sufficient to provide protection for an individual’s

sincerely held religious beliefs, it is not a necessary precondition. See Frazee v. Ill.

Dep’t of Emp’t Sec., 489 U.S. 829, 834 (1989)

The Religious Exemption Form asks several unlawful questions designed to

determine whether the employee has a “correct” or “proper” or “valid” understanding

of religious doctrine, or whether any employee’s sincerely held religious beliefs are

shared broadly among other faithful. The Religious Accommodation Certification

Form seeks verification from a third party, under the penalty of perjury nonetheless,

to validate the stated beliefs. With this certification form, the City completely ignores

the legal protections afforded employees in that their religious beliefs need not be

acceptable, logical, consistent, or comprehensible, or shared with anyone to any

degree.

b. Requests for Medical Exemptions

FEHA and ADA protect disabled employees from discriminated in the

workplace. The ADA defines the term “disability” as having a “physical or mental

impairment that can substantially limit one or more important life activities.” See

Section 503 of the Rehabilitation Act of 1973 and Section 188 of the Workforce

Innovation and Opportunity Act. However, FEHA has a broader and more forgiving

definition that makes it easier to file a claim. Under FEHA, a disability can be defined

as a physical or mental impairment that limits a major life function, such as working.

California Government Code §11065. Under FEHA, stress, anxiety, arthritis, irritable

bowel syndrome, depression, frequent urination, and PTSD would all qualify as


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disabilities. Of course, more serious medical conditions, such as lupus, cancer and

multiple sclerosis are covered as well. Under both ADA and FEHA, the employer is

obligated to engage in the interactive process and to determine if a reasonable

accommodation can be provided.

Extremely concerning is the City presumes it knows better than an employee’s

medical provider on what conditions may require the need for an accommodation that

the employee not be vaccinated. The City expressly limits the medical conditions

they would qualify for an accommodation to those supported by the contraindications

or precautions to COVID-19 vaccination recognized by the CDC or by the vaccine’s

manufacturer. With this language, the City rewrites the scope of protection afforded

its employees for disabilities under both FEHA and ADA and effectively precludes

its employees from receiving recommended accommodation of no vaccination by a

medical providers related to heart, blood, lungs, joints, kidneys and a multitude of

other conditions. This presumption is simultaneously ludicrous and malicious.

The City intentionally ignores longstanding religious and disability rights with

its process and forms. Defendants’ conduct in this regard can only be viewed as a

violation of Plaintiffs and other LAPD personnel’s rights under Title VII, FEHA and

ADA. Therefore, Plaintiffs are entitled to a temporary restraining order and

preliminary injunctive relief prohibiting Defendants from enforcing the Exemption

Procedures.

C. Irreparable Harm Without Injunctive Relief

The loss of a constitutional right, “for even [a] minimal period of time,

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373

(1976). “When reviewing a motion for preliminary injunction, if it is found that a

constitutional right is being threatened or impaired, a finding of irreparable injury is

mandated.” Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (emphasis added);

see also Newsome v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) (“The Supreme Court


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has unequivocally admonished that even minimal infringement upon First

Amendment values constitutes irreparable injury sufficient to justify injunctive

relief.”) (citing Elrod). Because “a constitutional right is being threatened or

impaired” in this case, “a finding of irreparable injury is mandated.” “[C]onstitutional

violations cannot be adequately remedied through damages and therefore generally

constitute irreparable harm.” Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008).

Because intangible injuries generally lack an adequate legal remedy, "intangible

injuries [may] qualify as irreparable harm." Ibid. Ariz. Dream Act Coalition v.

Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014).

Moreover, to support injunctive relief, harm must not only be irreparable, it

must be imminent; establishing a threat of irreparable harm in the indefinite future is

not enough. Rather, "a plaintiff must demonstrate immediate threatened injury as a

prerequisite to preliminary injunctive relief." Caribbean Marine Servs. Co., Inc. v.

Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). An irreparable harm is one that “cannot

be undone,” and an injunction is appropriate if the “anticipated injury is imminent

and irreparable.” ADT v. Capital Connect, 145 F. Supp. 3d 671, 694 (N.D. Tex.

2015).

In this case, the likelihood of irreparable harm to Plaintiffs is substantial and

immediate. As of this filing, the time for Plaintiffs and other City employees to

submit a request for accommodation has expired and the online portal identified as

the only way to submit request for exemptions has never worked. In addition, the

only form allowed by the City by which Plaintiffs and other LAPD personnel may

file their requests violates the law to the extent it requires information and third party

verifications.

It is understandable that City employees may be considering acquiescing to the

mandate, as many have already been coerced into doing, thereby risking their health

and/or their conscience in favor of their livelihood. If the Court does not enter


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immediate and preliminary injunctive relief for those employees with religious or

medical reasons to seek an exemption and those employees determine that they must

forsake their consciences or health to maintain their income, that decision cannot be

reversed or remedied by any subsequent action. Too preserve this Court’s ability to

later order meaningful relief as to the Exemption Procedures and the Ordinance it

must enter preliminary injunctive relief now.

D. Plaintiffs’ Injury Outweighs any Potential Hardship to City.

Petitioners must also establish that "the balance of equities tips in [their]

favor." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). In

assessing whether the Petitioners have met this burden, the district court has a "duty

. . . to balance the interests of all parties and weigh the damage to each." L.A. Mem'l

Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1203 (9th Cir. 1980).

The State “is in no way harmed by the issuance of an injunction that prevents the

state from enforcing unconstitutional restrictions.” Legend Night Club v. Miller, 637

F.3d 291, 302–03 (4th Cir. 2011).

As explained above, the religious and medical rights of Plaintiffs and other

LAPD personnel are currently being threatened or impaired. In the event that this

proposed injunction is not granted, Plaintiffs herein face immediate and irreparable

harm to their religious and medical rights by virtue of the enforcement of the

Exemption Procedures and the Ordinance, either by irreversibly injecting their bodies

with an experimental medication that violates their personal beliefs and/or their

health, or they lose their livelihoods. This irreparable harm is real and ongoing.

The only hardship to be suffered by the City and Defendants with an injunction

is that the City and Defendants will have to put a hold on achieving the arbitrary and

unreasonable goal of a “fully vaccinated workforce”. Defendants can maintain a safe

and healthy work environment for coworkers and the community by simple adhering


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to the safety protocols currently in place such as wearing masks. In other words, this

injunction will create absolutely no hardship to the City.

E. Granting the Injunction Will Serve the Public Interest.

Courts in the Ninth Circuit apply a sliding scale approach to preliminary relief

regarding the issue of “public interest”. See All for the Wild Rockies v. Cottrell, 632

F.3d at 1131. The reviewing court must balance the elements "so that a stronger

showing of one element may offset a weaker showing of another." Ibid. The Supreme

Court held, in Roman Catholic Diocese, that “even in a pandemic, the Constitution

cannot be put away and forgotten [… and] it has not been shown that granting the

applications will harm the public.” Roman Catholic Diocese, 141 S. Ct. at p. 68. “[I]t

is always in the public interest to prevent the violation of a party’s constitutional

rights.” G & V Lounge, Inc., 23 F.3d at 1079; see also Dayton Area Visually Impaired

Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (stating that “the public

as a whole has a significant interest in ensuring equal protection of the laws . . .”).

“Religion is the first of our rights under the First Amendment and the Bill of Rights.

The right to the free exercise of religion is a precious American invention . . . to be

jealously guarded. It is the right of a human being to respond to what that person’s

conscience says is the dictate of God.” Ward v. Walsh, 1 F.3d 873, 876 (9th Cir.

1993). The value of religious freedom has been “zealously protected, sometimes even

at the expense of other interests of admittedly high social importance.” Wisconsin v.

Yoder, 406 U.S. 205, 214 (1972).

Defendants’ enforcement of the Ordinance conditioning employment on

vaccine administration is a direct attack, under color of law, on Plaintiffs’ bodily

integrity. Therefore, it is an unconstitutional abuse of power that is harming public

health, not advancing it. Defendants have no reasonable basis for believing that all or

even most of the individuals it is ordering to be vaccinated or subjected to testing


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pose any greater threat to public safety than vaccinated members of the general

population.

We know from the Director of the Center for Disease Control (“CDC”) herself,

Rochelle Walensky, that the vaccines help only with regard to reducing the severity

of the symptoms for those who catch COVID-19 “but what they can’t do anymore is

prevent transmission.” In fact, that CDC altered its mask wearing guidance after it

determined that vaccination does not prevent vaccinated individuals from spreading

the disease.6

Recognizing the centrality of religious freedom to the public interest, other

courts—including the Supreme Court—have protected religious exercise even in the

face of competing public health considerations. See, e.g., Tandon v. Newsom, 141 S.

Ct. 1294 (2021) (ordering preliminary injunctive relief against COVID-19 public

health order restricting religious exercise); S. Bay United Pentecostal Church v.

Newsom, 141 S. Ct. 716 (2021) (same); Roman Cath. Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) (same); Harvest Rock Church, Inc. v. Newsom, 141 S. Ct. 889

(2020) (same); Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) (same); Order, Dr. A.,

No. 21-cv-10009 (N.D.N.Y. Sept. 13, 2021).

The same is true of allowing individuals to make medical choices—in

consultation with their doctors—to protect their health. The Supreme Court

recognized, in holding that a court could not force a plaintiff to submit to a surgical

examination as to the extent of the injury sued for, that “[n]o right is held more sacred,

or is more carefully guarded by the common law, than the right of every individual

to the possession and control of his own person, free from all restraint or interference

of others, unless by clear and unquestionable authority of law.” Union Pac. Ry. Co.

v. Botsford, 141 U.S. 250, 251 (1891).

6 https://www.youtube.com/watch?v=TKFWGvvlVLI, CDC Director (August 6, 2021) in an interview with CNN’s

Wolf Blitzer starting at time mark 0:56 to 1:56.


https://www.youtube.com/watch?v=TKFWGvvlVLI

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“In enacting the ADA, Congress demonstrated its view that the public has an

interest in ensuring the eradication of discrimination on the basis of disabilities.”

Enyart v. Nat’l Conf. of Bar Exam’rs, 630 F.3d 1153, 1167 (9th Cir. 2011). Many

district courts have recognized a public interest in enforcing the ADA. See, e.g.,

Ramsay v. Nat’l Bd. of Med. Exam’rs, No. 19-CV-2002, 2019 WL 7372508, at *19

(E.D. Pa. Dec. 31, 2019), aff’d, 968 F.3d 251 (3d Cir. 2020), cert. denied, 141 S. Ct.

1517 (2021) (“It is obviously in the public interest that the dictates of the ADA . . .

be followed—Congress so decreed by passing [the] statute[].”); Lyon v. Illinois High

Sch. Ass’n, No. 13-CV-00173, 2013 WL 140926, at *5 (N.D. Ill. Jan. 10, 2013), as

amended (Jan. 11, 2013) (“The general public has a clear interest in protecting the

rights of the disabled; and by providing this disabled individual with the reasonable

accommodations to which he is entitled under the law, the interests of the public are

furthered.”)

In addition to all the reasons already outlined above, it is in the public interest

to issue a temporary restraining order and preliminary injunction, not only to preserve

constitutional rights of citizens, in general, but to avoid setting a precedent the allows

entities and governments to resort to drastic unlawful measures that cause irreversible

harm to body, mind and our American freedoms, in general.

CONCLUSION

Based on the foregoing, Plaintiffs require [1] an injunction mandating the City

to either immediately activate an online portal and/or designate and individual or

department to accept for consideration any written request for a Title VII, FEHA, or

ADA accommodation, whether by e-mail, letter, facsimile, or hand delivery; [2] an

injunction to restrain the City from requiring submission of a “Religious

Accommodation Certification Form” to obtain third party verification as to whether

an employee is a “member of a religious organization or religious belief system”; and

to restrain the City from requiring use of its designated Religious Exemption Form;


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[3] an order enjoining the Defendants from unlawfully restricting the meaning of

disability and interfering with the independent medical opinion of Plaintiffs’

physicians; and [4] an injunction prohibiting the City from taking any adverse

employment action against employees for not receiving the COVID-19 vaccine until

Title VII/FEHA/ADA requests have received full consideration.

This injunctive relief is necessary to maintain the status quo while the

preliminary injunction is litigated. This Court should also grant the motion for

preliminary injunction enjoining City from mandating Plaintiffs and other LAPD

personnel submit to vaccination to keep their jobs providing protection and security

to the community they serve.

DATED: October 21, 2021 WATKINS & LETOFSKY, LLP

/s/ Daniel R. Watkins

By: ___________________________

Daniel R. Watkins


Santa Ana, CA 92704


DATED: October 21, 2021 PACIFIC JUSTICE INSTITUTE

/s/ Kevin T. Snider

By: ___________________________

Kevin T. Snider

P.O. Box 276600







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CERTIFICATE OF SERVICE

On October 21, 2021, my office filed the foregoing document with the clerk of

court for the United States District Court, Central District of California. I hereby

certify that I have caused the document to be personally served on all parties as

follows:

CITY OF LOS ANGELES

c/o City Clerk

200 North Spring Street, Room 395

Los Angeles, California 90012

ERIC GARCETTI

200 N. Main St. – City Hall East

Los Angeles, CA 90012

(213) 978-7100

MICHAEL MOORE

200 N. Main St. – City Hall East

Los Angeles, CA 90012

(213) 978-8300

MATTHEW SZABO

c/o City Clerk

200 North Spring Street, Room 395

Los Angeles, California 90012

/s/ Naomi Berry

___________________________________

Naomi Berry


t: 949-476-9400 pacific justice institute

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