Henson v. PeaceHealth Peace Harbor Medical Center

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
MARGARET HENSON,
Plaintiff,
v.
PEACEHEALTH PEACE HARBOR
MEDICAL CENTER,
Defendant.
Case No. 6:23-cv-01101-AP
FINDINGS &
RECOMMENDATION
______________________________________
POTTER, United States Magistrate Judge:
Plaintiff Margaret Henson alleges that her former employer, Defendant PeaceHealth
Peace Harbor Medical Center, discriminated against her by failing to accommodate her religious
beliefs. Compl., ECF No. 1. She brings claims under Title VII and the corresponding Oregon
statute. Id. Defendant moves for summary judgment. Def.’s Mot., ECF No. 32. Defendant also
moves to strike the declaration of Colleen Huber, Plaintiff’s expert witness. Def.’s Reply 2–25,
ECF No. 42. Because Dr. Huber’s opinion does not meet reliability standards as required under
the Federal Rules of Civil Procedure, Defendant’s motion to strike should be granted. Because
any other accommodation would have been an undue hardship, Defendant’s motion for summary
judgment should also be granted.
BACKGROUND
Plaintiff is a certified medical assistant. Compl. ¶ 7. Beginning in 2010, she worked at
Defendant’s Peace Harbor Medical Center in Florence, Oregon. Id.; Freeman Decl. ¶ 2, ECF No.
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36. Specifically, Plaintiff worked at the contact center where her job duties primarily consisted of
telephoning patients and providers. Compl. ¶ 7; Freeman Decl. ¶ 4.
When the COVID-19 pandemic began in 2020, Defendant, like other healthcare facilities,
saw large numbers of patients infected with the virus. Kroll Decl. ¶ 4, ECF No. 34. Defendant
worked to reduce the risks of infection and the spread of the disease by “optimizing ventilation
systems, physical distancing, screening, testing, masking, and other forms of personal protective
equipment.” Kroll Decl. ¶¶ 4-5. When vaccines for COVID-19 became available in December
2020, Defendant encouraged employees to receive the vaccine. Kroll Decl. ¶ 6.
By the summer of 2021, the Delta variant surged in Oregon. Koekkoek Decl. ¶ 10, ECF
No. 33. COVID-19 cases increased nationwide by 300%, leading to increased hospitalizations
and deaths. Koekkoek Decl. ¶ 37; Koekkoek Decl. Ex. 12. In July 2021, Defendant convened an
Ethical Discernment process to determine whether they should require caregivers to be
vaccinated against COVID-19. Koekkoek Decl. ¶ 24. After considering “internal infection
prevention data, as well as publicly available information regarding COVID-19 and the
vaccines,” the Ethical Discernment team voted unanimously to require vaccination for all
caregivers, except those with medical or religious exceptions. Koekkoek Decl. ¶¶ 26, 27.
Defendant announced their vaccine requirement policy on August 3, 2021. Koekkoek Decl. ¶ 29.
At the same time, the State of Oregon was attempting to limit the spread of COVID-19.
On August 4, 2021, Governor Kate Brown announced a vaccine mandate. The initial Oregon
Health Authority (OHA) mandate required healthcare workers to either (1) be fully vaccinated or
(2) submit to weekly testing. OAR 333-019-1010 (eff. August 5, 2021 to August 24, 2021).
However, just twenty days later, OHA amended the rule, removing the weekly testing option and
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requiring all healthcare workers to be fully vaccinated or have a medical or religious exception in
place by October 18, 2021. OAR 333-019-10101 (eff. August 25, 2021 to June 30, 2023).
By the end of August 2021, Defendant had received exception requests from 267
caregivers in Oregon, including Plaintiff. Le Decl. ¶¶ 20, 33, ECF No. 35. Defendant approved
Plaintiff’s religious exception request, as well as those of 233 other caregivers in Oregon. Id.
Also in August 2021, Defendant “made the clinical determination that contact between
unvaccinated caregivers and patients, caregivers, or other community members in [their]
facilities posed an unacceptable health and safety risk.” Le Decl. ¶ 16. For employees with
approved medical or religious exception requests, Defendant initiated an interactive process to
determine if “the caregiver could perform the essential functions of their position 100%
remotely.” Le Decl. ¶ 23. Because of the nature of healthcare work, most employees were unable
to perform their jobs remotely.1 Le. Decl. ¶ 24. For those employees, Defendant “provided the
only other accommodation available that did not pose an unreasonable health and safety risk to
patients and other caregivers: unpaid administrative leave.” Id. Defendant determined that
Plaintiff could not perform her job 100% remotely and she was placed on administrative leave,
effective September 1, 2021. Le Decl. ¶¶ 33, 35.
STANDARDS
I. 	Motion to Strike Expert Witness
An expert witness’s opinion is admissible when the court finds it “more likely than not
that: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient
facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the
1 PeaceHealth was able to accommodate 142 caregivers with remote work. Le Decl. ¶ 21.
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expert’s opinion reflects a reliable application of the principles and methods to the facts of the
case.” Fed. R. Evid. 702. When evaluating scientific knowledge, courts should consider “whether
it can be (and has been) tested,” “whether the theory or technique has been subjected to peer
review and publication,” “the known or potential rate of error,” and general acceptance. Daubert
v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993). “Under Daubert, the trial court must
act as a ‘gatekeeper’ to exclude junk science that does not meet . . . reliability standards.” Ellis v.
Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011).
II. 	Summary Judgment
Summary judgment is warranted when, based on the pleadings, depositions, and other
interrogatories and admissions on file, together with the affidavits, if any, “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56. A dispute is considered “genuine” if the “evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A fact is “material” if it could affect the outcome of the case; disputes about
irrelevant or unnecessary facts do not preclude summary judgment. Id. And the materiality of the
fact is “determined by the substantive law governing the claim.” T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
Whether there is a genuine issue of material fact is often a close question. Id. Thus, the
moving party bears an initial burden to show the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). When the moving party has met its burden,
the non-moving party must present “specific facts showing that there is a genuine issue for trial.”
T.W. Elec. Ser., Inc., 809 F.2d at 630 (quoting Fed. R. Civ. P. 56(e)). The nonmoving party
cannot merely rely on allegations in the pleadings or claims that it will discredit the moving
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party’s evidence at trial. Id. But neither party need prove any fact conclusively at this stage. Id.
The court reviews evidence and draws inferences in the light most favorable to the non-moving
party and when evidence conflicts, the court “must assume the truth of the evidence set forth by
the nonmoving party with respect to that fact.” Id. at 631. At bottom, “if a rational trier of fact
might resolve the issue in favor of the nonmoving party, summary judgment must be denied. Id.
DISCUSSION
I. 	Defendant’s Motion to Strike Huber Declaration
Defendant moves to strike the declaration of Plaintiff’s expert witness, Colleen Huber,
NMD, under Rule 702. Def.’s Reply 2–18.2 Defendant argues that Dr. Huber is “disastrously
unqualified” and that her declaration is wholly comprised of “junk science” and “unreliable
nonsense.” Id. at 2.
When considering a motion to strike, the Court is tasked with determining whether the
expert’s testimony “rests on a reliable foundation and is relevant to the task at hand.” Daubert,
509 U.S. at 597. Here, Dr. Huber’s declaration fails to meet the reliability test. And to the extent
her opinion is that the medical community (and the government) got it wrong when it promoted
COVID vaccines, it is not relevant.
Dr. Huber is a naturopathic medical doctor.3 Huber Decl. ¶ 2, ECF No. 41. Plaintiff
proffers her opinion that “PeaceHealth could have offered ivermectin as an accommodation to
any employee in a healthcare setting from taking the COVID-19 vaccine, so that they could
2 Per Local Rule 56-1(b), Defendant’s evidentiary objections are properly brought in their Reply
memorandum.
3 Dr. Huber’s license was revoked in 2022. See Lauren Decl., Ex. 4, ECF No. 43. Dr. Huber has
appealed the revocation; the Arizona Court of Appeals recently remanded the case to the superior
court, holding that Dr. Huber was entitled to a de novo jury trial. Huber v. Arizona Naturopathic
Physicians Medical Board, —P.3d —, 2025 WL 2775274 (Az. Ct. App. Sept. 30, 2025).
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continue to work.” 4 Id. ¶ 22. In Dr. Huber’s view, ivermectin is an effective prophylactic. Id. at
13. Dr. Huber describes ivermectin as “extraordinarily safe” and effective as a treatment and a
prophylactic for COVID-19. Id. ¶ 11.
Dr. Huber’s opinion is based on her “study of ivermectin” and her experience “treating
both COVID patients and those who desired to prevent COVID.” Huber Decl. ¶ 6. Dr. Huber
asserts she treated 100 to 200 patients who exhibited COVID symptoms with ivermectin,
amongst other things.5 Huber Decl. ¶ 2. However, as Dr. Willian Ehni, Defendant’s rebuttal
expert notes, “this is anecdotal evidence.” Lauren Decl. Ex 5 (Ehni Report) at ¶ 3, ECF No. 43.
Dr. Huber fails to state how many patients were treated, the dose of ivermectin that was used, if
any protocol was followed or if there was a control group. Id. While clinical practice can
certainly support an expert’s opinion, treating a small percentage of patients who might have had
COVID with ivermectin does not amount to the type of clinical experience that would support
the conclusion that ivermectin could protect healthcare workers and patients from COVID-19.
Dr. Huber also relies on studies including a “meta-analysis” that purports to show
ivermectin was effective in treating COVID-19. Huber Decl. ¶ 3. But an analysis of the studies
used in that meta-analysis reveals that many of the studies have methodology issues including
studies that involved multiple treatments, had small sample sizes, were phone surveys, or had
inadequate randomization. Ehni Report ¶ 6. And none of the studies referenced by Dr. Huber
involve the use of ivermectin as a prophylactic. Id. at ¶ 9. Simply cherry-picking information
4 Dr. Huber believes that no one should get vaccinated for COVID. Lauren Decl. Ex. 1 (Huber
Depo.) at 11:17-20. It is her medical opinion that people should “avoid the vaccines like the
plague” because “vaccines in general are an 18th century superstition.” Id. at 138-39.
5 Because Dr. Huber believes there is no reliable law test for COVID, she did not test any of
these patients to confirm they actually had COVID. Huber Depo. 186:6-17.
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from studies—many of which would fail to meet the reliability test in the first instance—is
insufficient to support a conclusion that ivermectin was an effective treatment.
Plaintiff argues that Dr. Huber is “the perfect expert witness . . . because she literally
wrote the [self-published] book on treatments for COVID.” Pl.’s Surreply 1, ECF No. 48. Dr.
Huber has self-published two books about COVID-19: The Defeat of COVID: 500+ Medical
Studies Show What Works and What Doesn’t and Neither Safe Nor Effective: The Evidence
Against the COVID Vaccines. Huber Decl. ¶¶ 3, 4; Huber Depo. 100:13-15. Dr. Huber has also
published five articles in the online Primary Doctor Medical Journal, which bills itself as “A
peer-reviewed journal by physicians and scientists without commercial influence.” Primary
Doctor Medical Journal, pdmj.org (last visited October 9. 2025).
PDMJ.org is registered in Dr. Huber’s name and she is the primary publisher of articles
on the site. Lauren Decl. Ex. 1 (Huber Depo.) 83:23-84:1; 87:1-3.6 PDMJ.org does not provide
any details on their peer-review process; while Dr. Huber has been a peer reviewer for all the
articles that she did not write, she also cannot provide any detail on the peer review process.
Huber Depo. 81-82.
Because Dr. Huber’s writings on COVID have all essentially been self-published and not
subject to any meaningful form of peer review, the Court cannot find that they support reliability.
Further, none of Dr. Huber’s opinions regarding ivermectin have found general acceptance. In
fact, the opposite is true.7 The Food and Drug Administration, the World Health Organization,
6 In her Supplemental Declaration, Dr. Huber states that she has “never operated the PDMJ
website.” Huber Supp. Decl. ¶ 20. This inconsistency is immaterial.
7 Indeed, Dr. Huber’s postings on vaccinations and COVID-19 resulted in her being suspended
from Twitter for violating its COVID-19 policy which provided that users may not share or post
content “that may mislead people about ... the efficacy and/or safety of preventative measures,
treatments, or other precautions to mitigate or treat the disease. . . .” Huber v. Biden, No. 21-CV-
06580-EMC, 2022 WL 827248, at *5 (N.D. Cal. Mar. 18, 2022), aff’d, No. 22-15443, 2022 WL
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the National Institutes of Health, and Merck (the manufacturer of ivermectin) all recommend
against using ivermectin to treat COVID-19. Ehni Report ¶ 7. “The FDA has determined that
currently available clinical trial data do not demonstrate that ivermectin is effective against
COVID 19 in humans.” Ehni Report ¶ 8; U.S. Food and Drug Administration, Ivermectin and
COVID-19, https://www.fda.gov/consumers/consumer-updates/ivermectin-and-covid-19 (last
visited October 9, 2025).
Dr. Huber counters this by arguing that historically mainstream medicine has gotten
things wrong. Huber Suppl. Decl. ¶ 6 (noting that bloodletting was once believed to be an
effective treatment for disease). That may be true, but it does not change the fact that she has
failed to cite any reliable sources to show that the medical establishment was wrong about
ivermectin as a treatment for COVID. And to the extent she is saying that the evidence exists
now, it is not relevant. What is relevant is what information Defendant had at the time it made its
decision. See MacDonald v. Oregon Health & Sci. Univ., No. 3:22-CV-01942-IM, 2024 WL
3316199, at *7 (D. Or. July 5, 2024).
Dr. Huber’s “specialized knowledge” does not meet the reliability standards laid out in
Daubert. And to the extent that Dr. Huber’s opinion is that PeaceHealth and the public were
misled by the medical community about COVID, as a result of “censorship” of her ideas, that is
not relevant. Huber Suppl. Decl. ¶ 25. Defendant’s motion to strike should be granted.
II. 	Failure to Accommodate Religious Discrimination
Plaintiff brings claims of religious discrimination for failure to accommodate under Title
VII and ORS 659A.030. Because Oregon’s employment discrimination statutes were modeled
17818543 (9th Cir. Dec. 20, 2022) (finding that there was no conspiracy between Twitter and
former-President Biden and dismissing her lawsuit).
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after Title VII, courts generally analyze these claims together. Dawson v. Entek Int'l, 630 F.3d
928, 935 (9th Cir. 2011).
To establish a prima facie case of religious discrimination, a plaintiff must show that (1)
she holds a bona fide religious belief that conflicts with an employment duty; (2) she informed
her employer about the conflict; and (3) she was subjected to an adverse employment action
because of that conflict. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004). If a
plaintiff establishes a prima facia case of religious discrimination, the burden shifts to the
defendant to show that it could reasonably accommodate the employee without undue hardship.
Id.
Defendant argues both that Plaintiff failed to establish a prima facie case, and that any
other accommodation would have been an undue hardship. Def’s Mot. 19–34.
A. 	Prima Facie Case
Defendant first argues that Plaintiff has failed to articulate a religious belief that
conflicted with an employment duty. Def.’s Mot. 19. Plaintiff alleges that her “sincerely held
religious beliefs conflicted with PeaceHealth’s vaccine mandate.” Compl. ¶ 73. In her exemption
request, Plaintiff stated:
The Bible teaches that our bodies are a habitation for God and encourages to
abstain from substances or activity that may be threatening to one’s bodily health.
Based on the lack of sufficient research surrounding Covid-19 vaccines, and the
known harmful side-affects [sic] many individuals have experienced, it may be
harmful and dishonoring to my body to receive the vaccine. I also believe the use
of the vaccination containing cell lines from an aborted fetus to be unclean and a
grave violation of my faith and conscience.
Le Decl. Ex. 14. Plaintiff added that she has prayed earnestly to God and that “it is not God’s
will that [she] receive the Covid vaccination.” Id.
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When examining whether a plaintiff has articulated a “bona fide religious belief, courts
do not inquire into the sincerity or reasonableness of a plaintiff’s religious belief but instead
focus on the conflict between the belief and the job requirement. Bolden-Hardge v. Off. of
California State Controller, 63 F.4th 1215, 1222-23 (9th Cir. 2023). That conflict must be based
on religious not secular beliefs. Detwiler v. Mid-Columbia Med. Ctr., No. 23-3710, 2025 WL
2700000, at *7 (9th Cir. Sept. 23, 2025).
“Title VII does not protect secular preferences.” Tiano v. Dillard Dep’t Stores, Inc., 139
F.3d 679, 682 (9th Cir. 1998). Broad assertions like my “body is a temple” are predicated on
health concerns, rather than religious beliefs and therefore, are not sufficient to establish a
religious conflict. Detwiler, 2025 WL 2700000, at *11. Similarly, invocation of prayer is also
insufficient to establish a religious conflict. Id.
To the extent Plaintiff asserts that her body is a temple and that she prayed, those
statements are insufficient to show a conflict between her religious beliefs and the vaccine
mandate. But Plaintiff’s request for accommodation includes more than just those secular
statements; her request includes reference to the use of fetal cells in the vaccine. That is
sufficient for Plaintiff to establish a prima facie case here.
While Defendant argues that Plaintiff’s belief about fetal cell lines is not scientifically
accurate, that is not a requirement of a religious belief. Keene v. City & Cnty. of San Francisco,
No. 22-16567, 2023 WL 3451687, at *2 (9th Cir. May 15, 2023) (remanding a COVID vaccine
case where the plaintiff asserted a religious conflict based on supposed fetal cell lines in the
vaccine because “it seems that the district court erroneously held that Appellants had not asserted
sincere religious beliefs because their beliefs were not scientifically accurate.”); cf. Detweiler,
2025 WL 2700000, at * 8 n. 2 (noting that the Keene plaintiff had pled a specific religious
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belief); Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1176 n. 3 (9th Cir. 2021) (“We may
not and do not question the legitimacy of Jill Doe's religious beliefs regarding COVID-19
vaccinations.”).
Defendant also argues that Plaintiff “did not sufficiently inform PeaceHealth” of her
conflict. Def.’s Mot. 22. Because the Court finds that Plaintiff’s exemption request sufficiently
articulated a religious conflict, it follows that Plaintiff informed her employer of this conflict.
Defendant does not dispute the third element of Plaintiff’s prima facie case. Plaintiff
suffered an adverse employment action when she was placed on unpaid leave. Therefore,
Plaintiff has established a prima facie case of religious discrimination.
B. 	Undue Hardship
At this stage, the burden shifts to Defendant to show that Plaintiff’s religious beliefs
could not be accommodated short of placing her on leave without pay. Tiano, 139 F.3d at 681.
Here, Defendant argues that “[a]ny accommodation other than leave would have been an undue
hardship for non-remote healthcare workers.” Def.’s Mot 24. The Court agrees.
“‘[U]ndue hardship’ is shown when a burden is substantial in the overall context of an
employer’s business.” Groff v. DeJoy, 600 U.S. 447, 468 (2023). This is a fact-specific inquiry.
Id. Courts in this District have repeatedly found that “allowing unvaccinated [healthcare]
employees to work in-person would have been a substantial burden.” Gemmrig v. Asante Three
Rivers Med. Ctr., LLC, No. 1:22-CV-01814-AA, 2025 WL 1787524, at *11 (D. Or. June 25,
2025), report and recommendation adopted sub nom. Gilinsky v. Asante, No. 1:23-CV-00799-
CL, 2025 WL 2170528 (D. Or. July 31, 2025), and report and recommendation adopted, No.
1:22-CV-01814-AA, 2025 WL 2555337 (D. Or. Sept. 5, 2025) (collecting cases). In doing so,
courts have considered the information available at the time, the economic and non-economic
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costs, and the cumulative or aggregate effects of multiple employees requesting accommodations
at the same time. Lavelle-Hayden v. Legacy Health, 744 F.Supp.3d 1135, 1151-53 (D. Or. 2024).
The scientific data available at the time indicated that allowing unvaccinated employees
to work in person greatly increased the risk of COVID infections and deaths. The data also
showed that COVID-19 vaccines were safe and effective. Koekkoek Decl. Ex. 13. A July 2021
CDC report indicated that unvaccinated individuals were eight times more likely to contract
COVID-19, 25 times more likely to be hospitalized if they contracted COVID-19, and 25 times
more likely to die as a result of COVID-19. Koekkoek Decl. ¶ 36; Koekkoek Decl. Ex. 11. A
June 2021 study similarly found that COVID-19 vaccination reduced the risk of infection by
91% and also offered protection against severe illness and hospitalization if an individual still
became infected. Koekkek Decl. ¶ 35; Koekkoek Decl. Ex. 10.
PeaceHealth’s Infection Prevention team analyzed “the risk posed by both vaccinated and
unvaccinated caregivers” between January 2021 and August 2021. Kroll Decl. ¶ 18. They found:
 	Of 17 vaccinated caregivers who tested positive for COVID-19, the
vaccinated caregivers potentially exposed 55 patients, but only one patient
contracted COVID-19.
 	Of 19 unvaccinated caregivers who tested positive for COVID-19, the
unvaccinated caregivers potentially exposed 96 patients, and 20 of those
patients contracted COVID-19.
 	No patients died from contracting COVID-19 from vaccinated caregivers.
 	Two patients at a PeaceHealth facility outside Oregon died after contracting
COVID-19 from unvaccinated caregivers.
Id.
OHA rules were also in line with this data. “It is vital to this state that healthcare
providers and healthcare staff be vaccinated against COVID-19.” Or. Admin. R. 333-019-1010
(eff. Aug. 25, 2021 to June 30, 2023). OHA mandated that healthcare workers be fully
vaccinated against COVID-19 by October 18, 2021, unless they were granted a religious or
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medical exception. Id. OHA also mandated that healthcare employers who granted religious or
medical exceptions “take reasonable steps to ensure that unvaccinated healthcare providers and
healthcare staff are protected from contracting and spreading COVID-19.” Id. “The OHA’s
decision in August 2021 to add an additional vaccination requirement for healthcare workers, on
top of existing masking and other requirements, strongly indicates that those existing measures
alone were no longer sufficient to protect healthcare workers and patients.” Gemmrig, 2025 WL
1787524, at *9.
PeaceHealth’s mission is “to promote personal and community health.” Koekkoek Decl.
¶ 6. “A significant portion of PeaceHealth’s patients are medically vulnerable individuals, who
either could not be vaccinated (due to age or medical conditions) or who, despite vaccination, are
more susceptible to serious illness or death if they are exposed and experience a breakthrough
contraction of COVID-19.” Koekkoek Decl. ¶ 7. In keeping with their mission as a healthcare
facility, Defendant concluded that they could not allow unvaccinated individuals to work in
person. Id. (“Protecting these patients from exposure to COVID-19 by unvaccinated staff was a
matter of life or death.”).
The aggregate effect of hundreds of exception requests also supports finding that any
other accommodation would have been an undue hardship. Hall v. Sheppard Pratt Health Sys.,
Inc., No. 24-2048, 2025 WL 2957805, at *4 (4th Cir. Oct. 21, 2025) (“Courts may, and should,
look to the undue hardship a particular religious accommodation would have in the aggregate if
granted to all similarly situated employees.”). By the end of August 2021, Defendant had
received exception requests from 267 caregivers in Oregon; they approved 234 of them. Le Decl.
¶ 20. This “flood of exception requests . . . placed an incredible strain on an already exhausted
staff to cover shifts and hire and train contract healthcare workers.” Le Decl. ¶ 22. “In addition to
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the administrative strain, the sheer number of exception requests compounded the undue
hardship inherent in allowing unvaccinated individuals to work in person because the cumulative
risk would have been much greater than the individual impact of any single unvaccinated
employee.” Gemmrig at *10.
For employees whose job duties required in-person work, “any accommodation other
than leave would have posed an undue hardship on Defendant.” Sano v. PeaceHealth, Inc., No.
6:22-CV-01210-MTK, 2024 WL 4979429, at *9 (D. Or. Dec. 4, 2024); see also Petersen v.
Snohomish Reg'l Fire & Rescue, 150 F.4th 1211, 1220 (9th Cir. 2025).8
Plaintiff offers two alternative reasonable accommodations: (1) Defendant could have
permitted her to work remotely or (2) Defendant could have offered her ivermectin.
Plaintiff argues that she could have worked remotely because she was “not an employee
with direct patient contact or who require[d] facilities like laboratories to do her work.” Pl.’s
Resp. 7. “However, employers have the ultimate authority to determine what are the essential
functions of a job position, and if it requires in-person work.” Kather v. Asante Health Sys., No.
1:22-CV-01842-MC, 2025 WL 1788267, at *8 (D. Or. June 25, 2025), report and
recommendation adopted, No. 1:22-CV-01842-MC, 2025 WL 2374384 (D. Or. Aug. 14, 2025),
and report and recommendation adopted sub nom. Johnson v. Asante Health Sys., No. 1:23-CV-
8 “Allowing unvaccinated firefighters to keep working in October 2021 would have come at a
substantial cost to SRFR. The objective, unrebutted medical evidence shows that SRFR would
have faced significant health and safety costs by allowing unvaccinated firefighters to continue
working, even with accommodations. Those costs would have affected SRFR’s own workforce
and persons in the public needing emergency, even life-saving, services. Because firefighters did
not (and likely could not) always mask and social distance, SRFR needed a way to ensure
employee and public safety. Dr. Lynch’s opinion explains that the vaccine offered the safest,
easiest, and most effective way of doing so.”
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1261-AA, 2025 WL 2576376 (D. Or. Sept. 5, 2025) (citing Bates v. United Parcel Serv., Inc.,
511 F.3d 974, 991 (9th Cir. 2007)).
Plaintiff, a medical assistant, worked as a Contact Center Caregiver at the Peace Harbor
Clinic. Compl. ¶ 7, Freeman Decl. ¶ 3. Stacy Freeman, the Clinic Manager at the Peace Harbor
Clinic, declares that “[t]he primary duties of all Contact Center Caregivers were to answer and
make phone calls to and from patients and other providers, including calls regarding referrals,
prescription refills, scheduling and confirming appointments, verifying insurance coverage, and
otherwise directing patient calls to nurses and providers as needed.” Freeman Decl. ¶ 4; see also
Le Decl. Ex. 13 (Medical Assistant Job Description). Medical assistants working in the contact
center were “trained to assist with patient care by taking vitals, preparing patients for exams, and
assisting with procedures.” Freeman Decl. ¶ 6. They also “interacted frequently with patient
electronic health records.” Id. Ms. Freeman also declares that Contact Center Caregivers
frequently needed to “walk[] around the clinic to find an appropriate nurse or provider to ask for
help, as clinical staff were generally on the floor attending to patients . . . and not quickly
reachable by phone, email, or other electronic communication.” Freeman Decl. ¶ 7. Finally, Ms.
Freeman declares that when a Contact Center Caregiver had a patient in crisis on the phone,
“clinic policy was to keep the patient on the line and hold up a ‘pink card’ to indicate to other
nearby caregivers that they required immediate assistance.” Freeman Decl. ¶ 8.
By contrast, Plaintiff declares that she performed her job duties entirely by phone or
email. Henson Decl. ¶ 12, ECF No. 40. “I never physically walked around the clinic to find an
appropriate nurse or provider to ask for help.” Henson Decl. ¶ 13. “Moreover, I could not walk
about the clinic without losing the phone connection with the patient.” Id. “I never got up to find
a nurse when a COVID call came in. I either telephoned for help, or I sent a message.” Henson
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Decl. ¶ 14. “The pink card procedure was obsolete and not used long before COVID.” Henson
Decl. ¶ 15. Further, “I could not contact anyone with a pink card because I was in an office by
myself. . . . Our process was to contact management or a registered nurse.” Id.
This dispute about the nature of the job duties is not material, though, because regardless,
Defendant maintains that Plaintiff’s job duties could not be performed remotely. According to
Defendant, Peace Harbor Clinic “did not have the technology to allow Contact Center Caregivers
to work remotely,” at the time because Plaintiff’s job duties required “accessing patient
electronic health records frequently, and because Plaintiff would be unable to comply with
PeaceHealth’s confidentiality and patient privacy policies if she were working remotely. Def.’s
Reply 31; Freeman Decl. ¶¶ 11-12. Indeed, Defendant submits that no PeaceHealth contact
center employee has ever worked remotely. Freeman Decl. ¶ 13.
Plaintiff does not offer any evidence to dispute these assertions. Instead, Plaintiff argues
that it is a question of fact whether she could perform her job entirely remotely. In support,
Plaintiff cites to Kather. 2025 WL 1788267. In Kather, the court considered whether 61
healthcare workers could have performed their job duties 100% remotely during COVID. Id. at
*9-12. The court found that all but two could not. Id. While Plaintiff likens her situation to those
two plaintiffs, they are entirely distinguishable. One plaintiff had worked remotely since the
beginning of the pandemic. Id. at *11. The other plaintiff had performed her job completely
remotely before the pandemic. Id. Plaintiff, on the other hand, never worked remotely for
PeaceHealth. Nor does she point to any evidence that any contact center employee worked
remotely during COVD, because none did. Freeman Decl. ¶ 13. To the extent Plaintiff’s
argument is that the technology existed, she cites to nothing that would require Defendant to
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prioritize developing and implementing new technology in its clinics in the middle of a
pandemic.
Because Plaintiff needed to access sensitive patient data that could not be accessed
remotely, Plaintiff was not able to perform her essential job duties 100% remotely.
As an alternative, Plaintiff argues that Defendant should have offered her prophylactic
dosing of ivermectin in place of the vaccine as a reasonable accommodation.9 Pl.’s Resp. 12–15.
In support, Plaintiff proffers Dr. Huber’s opinion. However, as explained above, Dr. Huber’s
opinion does not meet the standards for reliability required under FRE 702 and Daubert. But
even if Dr. Huber’s opinion were reliable, “it is appropriate to confine the analysis to the
information available to the employer when it made its undue hardship decision.” MacDonald,
2024 WL 3316199, at *7. Dr. Huber’s opinion is that everyone got it wrong about COVID and
ivermectin. See Huber Suppl. Decl. ¶ 31 (“The establishment within the medical community has
been misleading the public through-out the COVID era. New evidence is being revealed nearly
every day validating my opinions and showing how badly the public was misled.”). But she does
not—because she cannot—deny that all the information Defendant was receiving in 2021
counseled against the use of ivermectin.
In developing their COVID-19 policies, PeaceHealth used “currently available,
established and respected sources of medical information.” Ehni Report ¶ 13. “The FDA and
every government agency and major medical authority addressing the issue had denounced and
recommended against using ivermectin to treat COVID-19.” Salier v. Walmart, Inc., 76 F.4th
796, 802 (8th Cir. 2023); Ehni Report ¶ 13. PeaceHealth “relied on the scientific evidence and
COVID data then available and acted in the best interests of the community.” Petersen, 150
9 There is no evidence before the Court that Plaintiff asked for this accommodation.
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F.4th at 1222. Yet, despite this, Plaintiff contends that Defendant should have offered—without
even being asked—to allow her to use a treatment in lieu of a vaccine that every major medical
authority rejected. That is not reasonable; use of prophylactic ivermectin was not appropriate.
Because Defendant has shown that any other accommodation would have been an undue
hardship, Defendant’s motion for summary judgment should be granted.
III. 	Time-Barred State Law Claims
Defendant also argues that Plaintiff’s state law claim under ORS 659A.030 is time-barred
because Plaintiff filed suit 101 days after BOLI issued a Right to Sue letter. Def.’s Mot. 35.
While the state law claims should be dismissed because Plaintiff has not established a failure to
accommodate, the Court will address this argument as well.
Plaintiff filed a complaint with BOLI under 659A.820. Le Decl. Ex. 18. When Plaintiff
filed her complaint, ORS 659A.875 provided that “[a] person who has filed a complaint under
ORS 659A.820 must commence a civil action under ORS 659A.885 within 90 days after a 90-
day notice is mailed to the complainant. ORS 659A.875(2) (2023) (amended 2025). “This Court
has held in several similar cases that, when a plaintiff files a complaint with BOLI, the statute of
limitations for claims brought under O.R.S. 659A.030 is 90 days following the mailing of the
right-to-sue letter.” Kneisler v. Legacy Health, 760 F. Supp. 3d 1137, 1143–44 (D. Or. 2024)
(collecting cases). Plaintiff’s right to sue letter was issued on April 17, 2023. Le Decl. Ex. 18.
This action was not filed until July 27, 2023, 101 days later. Compl.
Plaintiff argues that the statute “irrationally” shortened the statute of limitations and
should therefore not be followed. Pl.’s Resp. 16, ECF No. 39. In support, Plaintiff cites to a 2017
District of Oregon opinion acknowledging that this interpretation “would penalize a plaintiff who
promptly files a BOLI complaint immediately after the allegedly unlawful employment
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practice.” Daniel v. Oregon Health & Scis. Univ., 262 F. Supp. 3d 1079, 1086 (D. Or. 2017). But
the Daniel Court has since reconsidered that holding and concluded that “Oregon Revised
Statutes § 659A.875(1)-(2) requires that a person must commence a civil action within 90 days
of receiving a right-to-sue letter from the Oregon Bureau of Labor and Industries,” and, as such,
the Court “no longer adheres to its holding in Daniel.” Perez v. Legacy Health, No. 3:24-CV-
1038-AR, 2025 WL 642234, at *1 n. 2 (D. Or. Feb. 27, 2025) (adopting the findings and
recommendation). And that is consistent with the holdings of the other courts in this district
which “have repeatedly held that a plaintiff who elects to file a BOLI complaint must file any
civil action based on the same claim within ninety days of the plaintiff's receipt of a right to sue
letter from BOLI.” Latham v. Legacy Health, No. 3:24-CV-01008-AN, 2025 WL 1393878, at *4
(D. Or. May 13, 2025) (citing cases).
Plaintiff also cites to the 2025 amendments to ORS 659A.875(2) and ORS 659A.880. As
of June 24, 2025, plaintiffs who file complaints with BOLI must commence a civil action
“[w]ithin 90 days after the date of issuance, if 90 days or less remain on the applicable statute of
limitations” or “[b]efore the limitations period expires, if more than 90 days remain on the
applicable statute of limitations.” ORS 659A.880(3). While Plaintiff argues that the 2025
amendments indicate that the Daniel court’s interpretation is correct, a closer look at the
legislative history indicates otherwise. The Background of the Staff Measure Summary for the
House Committee on Labor and Workplace Standards notes that “the right to bring a civil action
will be lost if the civil action is not commenced within 90 days after the date of the mailing.” H.
Comm. Lab. Workplace Standards, Staff Measure Summary, H. 83rd Leg. Assemb., 2025 Reg.,
at 2. The amendment fixed this issue, but there is no indication that the statute should be applied
retroactively. That same Staff Measure Summary notes that it “[a]pplies to complaints and
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actions that are filed on or after the effective date of this 2025 Act or filed before the effective
date of this 2025 Act and for which BOLI has issued no notice.” Id. This argument also fails.
Latham, 2025 WL 1393878, at *4 (noting that multiple courts have rejected this very argument).
Because Plaintiff filed her complaint more than 90 days after the issuance of the right to
sue letter, her state law claim is time barred and should be dismissed.
RECOMMENDATION
Defendant’s Motion to Strike should be granted. Defendant’s Motion for
Summary Judgment (ECF No. 32) should be granted. Plaintiff’s state law claim under
ORS 659A.030 should be dismissed.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any,
are due fourteen (14) days from service of the Findings and Recommendation. If no objections
are filed, then the Findings and Recommendation will go under advisement on that date.
A party’s failure to timely file objections to any of these findings will be considered a
waiver of that party’s right to de novo consideration of the factual issues addressed herein and
will constitute a waiver of the party’s right to review of the findings of fact in any order or
judgment entered by a district judge. These Findings and Recommendation are not immediately
appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1)
of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.
DATED this ____ day of November, 2025.
___________________________
AMY E. POTTER
United States Magistrate Judge
18th
/s/Amy E. Potter
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