Petra Brokken v. Hennepin County

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-1914
___________________________
Petra Brokken
Plaintiff - Appellant
v.
Hennepin County
Defendant - Appellee
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: February 12, 2025
Filed: June 5, 2025
____________
Before LOKEN, BENTON, and STRAS, Circuit Judges.
____________
BENTON, Circuit Judge.
Petra Brokken sued her employer—Hennepin County—alleging
discrimination based on religion in violation of Title VII of the Civil Rights Act of
1964 (42 U.S.C. § 2000e et seq.) and the Minnesota Human Rights Act (Minn. Stat.
§ 363A.01 et seq) (MHRA), and wrongful discharge in violation of Minnesota’s
Refusal of Treatment statute (Minn. Stat. § 12.39). The district court dismissed the
claims, ruling that (1) Brokken failed to plead an adverse employment action, (2)

-- 1 of 9 --

-2-
she failed to plausibly plead religious beliefs that conflict with the County’s Covid-
19 policy, (3) the MHRA does not provide a cause of action for failure to
accommodate religious beliefs, and (4) § 12.39 does not create a private right of
action. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part,
reverses in part, and remands.
I.
This court states the facts as set out in Brokken’s complaint. Hennepin County
required all employees to receive the Covid-19 vaccine or test weekly during the
pandemic. Brokken requested a religious exemption from vaccination and testing.
After initially granting an accommodation, the County revised its policy and told
Brokken that “if she did not test she would be terminated” and “if she was terminated
for refusing to test, the termination would be a specific type of termination, where it
would be likely that she would lose such benefits as her banked vacation time, sick
time, and comp time.” Brokken had accrued over 1,285 hours. She believed a
coworker had been terminated without benefits. She “retired under duress.”
Brokken sued, alleging religious discrimination in violation of Title VII and
the MHRA, and wrongful discharge in violation of § 12.39, among other claims.
Her complaint alleged:
• “Plaintiff Brokken has deeply held and sincere spiritual beliefs that
include the sanctity of her right to privacy, personal autonomy, and
bodily integrity. Her beliefs are comprehensive and order her life like
a religion orders the lives of people who believe in God and traditional
religions.”
• “Her beliefs guide her in pondering the deep issues of life. She believes
that she must treat her body as Temple, and each person has the right to
choose what he or she will put into their body, based on free will. She
strives to control what she puts into her body, and assiduously attempts
to keep toxins out of her body. She does not take pharmaceutical
products. Her firmly held beliefs in the energetic connectedness of the

-- 2 of 9 --

-3-
universe do not allow her to receive an injection of the COVID-19
vaccines.”
• “Plaintiff Brokken is also opposed to COVID-19 testing because her
religious beliefs do not allow her to provide her DNA or other
biological materials by force or coercion. The use and possession of
her biological materials has been granted to her by her Creator. The
COVID-19 testing process involves transporting her material—
objectionable for the above reasons—or mixing her biological materials
with serum taken from fetal bovines (calves). The process of obtaining
the fetal bovine serum is performed through placing an 8 inch needle
into the heart of a fetal calf and draining the fluids, without pain relief,
in essence torture of calves, which violates her sincerely held beliefs.”
The district court granted the County’s motion to dismiss for failure to state a claim.
Brokken appeals the dismissal of her religious discrimination claims.
“This court reviews de novo a 12(b)(6) dismissal.” Kale v. Aero Simulation,
Inc., No. 23-3380 (8th Cir. June 5, 2025), quoting Ringhofer v. Mayo Clinic, 102
F.4th 894, 898 (8th Cir. 2024). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true to state a claim to relief that is
plausible on its face.” Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “In analyzing a motion to
dismiss, a court must accept the allegations contained in the complaint as true and
make all reasonable inferences in favor of the nonmoving party.” Martin v. Iowa,
752 F.3d 725, 727 (8th Cir. 2014).
II.
Each of Brokken’s claims (Title VII, MHRA, and § 12.39) require that she
experience an adverse employment action. See Jones v. TEK Indus., 319 F.3d 355,
359 (8th Cir. 2003) (Title VII religious discrimination claim requires an adverse
employment action); Henry v. Indep. Sch. Dist. No. 625, 988 N.W.2d 868, 883

-- 3 of 9 --

-4-
(Minn. 2023) (MHRA disparate treatment claim requires an adverse employment
action); Borgersen v. Cardiovascular Sys., Inc., 729 N.W.2d 619, 624 (Minn. Ct.
App. 2007) (wrongful discharge claim requires an adverse employment action).
Most importantly, “[d]ismissal of the complaint on the basis of no adverse action is
improper at this stage of the proceedings.” Cole v. Grp. Health Plan, Inc., 105 F.4th
1110, 1114 (8th Cir. 2024), citing Patrick v. Henderson, 255 F.3d 914, 916 (8th Cir.
2001) (holding that “adverse employment action is a fact issue that is rarely
appropriate for Rule 12 resolution”). “An adverse employment action is a
disadvantageous change to the compensation, terms, conditions, or privileges of
employment.” Id., citing Muldrow v. St. Louis, 601 U.S. 346 (2024). A plaintiff
“is only required to plead ‘some harm respecting an identifiable term or condition of
employment.’” Id., quoting Muldrow, 601 U.S. at 355. The harm need not be
“significant,” “serious,” “substantial, or any similar adjective suggesting that the
disadvantage to the employee must exceed a heightened bar.” Muldrow, 601 U.S.
at 355. “Title VII’s text nowhere establishes that high bar.” Id. at 350.
Brokken pled she “retired under duress.” The Country told her they would
terminate her for refusing to test, and it “would be a specific type of termination,
where it would be likely that she would lose such benefits as her banked vacation
time, sick time, and comp time.” Brokken had banked more than 1,285 hours. The
threat of losing compensation for those hours—no matter the amount—was a
“disadvantageous change.” Cole, 105 F.4th at 1114.
Still, the County argues Brokken had to meet a higher standard for
constructive discharge, which she failed to meet. In any event, Brokken meets the
standard. “[A] plaintiff must show: (1) ‘he was discriminated against by his
employer to the point where a reasonable person in his position would have felt
compelled to resign,’ and (2) ‘he actually resigned.’” Norgren v. Minnesota Dep’t
of Hum. Servs., 96 F.4th 1048, 1056 (8th Cir. 2024), quoting Green v. Brennan,
578 U.S. 547, 555, 560 (2016) (“We do not also require an employee to come
forward with proof . . . that not only was the discrimination so bad that he had to
quit, but also that his quitting was his employer’s plan all along.”). The first element

-- 4 of 9 --

-5-
is an objective standard that considers of “all of the attendant circumstances,
including the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Id. Brokken
alleges she faced a choice between violating her sincerely held religious beliefs by
complying with the testing requirement and termination, which would mean the
likely loss of significant accrued benefits. A reasonable person would have felt
compelled to resign. And, Brokken actually resigned, satisfying the second element.
Brokken plausibly pled constructive discharge.
III.
Brokken asserts religious discrimination (also called “disparate treatment”)
and failure to accommodate under Title VII. “A failure to accommodate, while
actionable, is not a freestanding cause of action under Title VII.” Cole, 105 F.4th at
1113, citing EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 771–73
(2015) (explaining the only two causes of action under Title VII are disparate
treatment and disparate impact, and analyzing an employee’s failure to
accommodate claim as a disparate treatment claim). “Any inquiry as to whether
[defendant] offered [plaintiff] a reasonable accommodation or would suffer an undue
hardship by accommodating [plaintiff] is generally not appropriately considered at
the motion to dismiss stage.” Id. The reasonableness of accommodations “is a
question for the jury because it turns on fact-intensive issues.” Sturgill v. United
Parcel Serv., Inc., 512 F.3d 1024, 1033 (8th Cir. 2008). Thus, this court analyzes
only whether Brokken sufficiently alleges disparate treatment. See Cole, 105 F.4th
at 1113 (declining to address plaintiff’s reasonable accommodation arguments, and
instead analyzing plaintiff’s “allegations in the context of a disparate treatment
claim”).
The district court dismissed Brokken’s Title VII claims, ruling she failed to
plead a sincerely held religious belief that conflicted with the County’s vaccination
and testing requirement. “To survive a motion to dismiss, plaintiffs must

-- 5 of 9 --

-6-
‘adequately identify religious views they believe to conflict with’ the employer’s
policy.” Kale, No. 23-3380 at 4, quoting Ringhofer, 102 F.4th at 901. “[B]eliefs
do not have to be uniform across all members of a religion or ‘acceptable, logical,
consistent, or comprehensible to others.’” Ringhofer, 102 F.4th at 901, quoting
Thomas v. Review Bd. of Ind. Empl. Sec. Div., 450 U.S. 707, 714 (1981). “By
connecting their objection to testing to specific religious principles . . . [plaintiffs]
satisf[y] their burden at [the pleading] stage.” Id. at 902 (allowing plaintiffs’ claims
to proceed because they connected their religious objection to unnecessary medical
procedures to their employer’s requirement that they subject to such procedures).
Accord Kale, No. 23-3380 at 5 (distinguishing plaintiff who did not connect his
religious objection to intrusions into the body to his employer’s testing procedures,
which did not necessarily intrude into the body).
Brokken’s complaint connects her objection to vaccination and testing to
specific religious principles. She pled she “believes that she must treat her body as
Temple, and each person has the right to choose what he or she will put into their
body, based on free will.” Due to this belief, she “strives to control what she puts
into her body, and assiduously attempts to keep toxins out of her body.” These
“firmly held beliefs” connect to her objection to the Covid-19 vaccine, which is
“injected” into the body. Additionally, she pled “her religious beliefs do not allow
her to provide her DNA or other biological materials by force or coercion” because
the “use and possession of her biological materials has been granted to her by her
Creator.” These alleged beliefs connect to her objection to testing, which “involves
transporting her material . . . or mixing her biological materials with serum taken
from fetal bovines (calves).” Brokken satisfies her burden of pleading that her
alleged religious beliefs conflict with her employer’s policy. Cf. Vetter v. Farmland
Indus., 120 F.3d 749, 752 (8th Cir. 1997) (reversing a judgment as a matter of law
because “[t]he evidence was in conflict on [the plaintiff’s beliefs], and it was for the
jury to resolve the conflict”).
The district court also rejected Brokken’s disparate treatment claims because
the County’s mandate applied to all employees. See Shirrell v. St. Francis Med.

-- 6 of 9 --

-7-
Ctr., 793 F.3d 881, 887 (8th Cir. 2015) (“Circumstances giving rise to an inference
of discrimination include treating similarly situated employees who are not members
of the protected class in a different manner.”). But “courts generally do not inquire
about comparators until summary judgment.” Cole, 105 F.4th at 1114–15, citing
Norgren, 96 F.4th at 1056. “[W]e must grant all reasonable inferences in
[plaintiff’s] favor and cannot assume at this early juncture that religious
discrimination did not occur because one subset of potential comparators also faced
disparate treatment.” Id. at 1114. This court reverses and remands the dismissal of
Brokken’s Title VII claims.
IV.
For the same reasons, the County argues Brokken failed to plead religious
discrimination in violation of the MHRA. “The MHRA makes it unlawful for an
employer to ‘discharge’ or ‘discriminate against a person with respect to hiring,
tenure, compensation, terms, upgrading, conditions, facilities, or privileges of
employment’ because of ‘religion’ (among other factors).” Ringhofer, 102 F.4th at
902, quoting Minn. Stat. § 363A.08, subd. 2. “The same analysis applies to both
MHRA and Title VII claims.” Id., quoting Torgerson v. City of Rochester, 643 F.3d
1031, 1043 (8th Cir. 2011) (en banc), citing Bahr v. Capella Univ., 788 N.W.2d 76,
83 (Minn. 2010).
The district court dismissed Brokken’s MHRA claim, concluding the MHRA
did not include a cause of action for failure to accommodate. Since then, this Court
held “the Minnesota Supreme Court would decide that the MHRA provides
protection against failures to accommodate religious beliefs.” Id. at 903. See
Integrity Floorcovering, Inc. v. Broan-Nutone, LLC, 521 F.3d 914, 917 (8th Cir.
2008) (“If the Minnesota Supreme Court has not spoken on a particular issue, we
must attempt to predict how the Minnesota Supreme Court would decide an issue
and ‘may consider relevant state precedent, analogous decisions, considered dicta
. . . and any other reliable data.’” (citation omitted)).

-- 7 of 9 --

-8-
Under Ringhofer, Brokken can allege a MHRA failure to accommodate claim.
Because she plausibly pled religious discrimination in violation of Title VII, she also
plausibly pled religious discrimination in violation of MHRA. The district court’s
dismissal of Brokken’s MHRA claim is reversed and remanded.
V.
Brokken argues that the County violated Minnesota’s Refusal of Treatment
statute by requiring her to vaccinate and/or test. The statute, however, does not
create a private right of action. It provides: “individuals have a fundamental right to
refuse medical treatment, testing, physical or mental examination [and] vaccination
. . . .” Minn. Stat. § 12.39, subd. 1. Two Minnesota District Courts rejected a
private right of action under § 12.39 in the Covid-19 vaccine context. See
Collingham v. City of Northfield, No. 21-2466, 2022 WL 1558410, at *2 (D. Minn.
May 17, 2022); Zarn v. Minn. Dep’t of Hum. Servs., No. 22-1756, 2022 WL
11227241, at *3 (D. Minn. Oct. 19, 2022). They relied on state precedent: “A statute
does not give rise to a civil cause of action unless the language of the statute is
explicit or it can be determined by clear implication.” Becker v. Mayo Found., 737
N.W.2d 200, 207 (Minn. 2007). “A right of action that does not exist at common
law cannot be created from regulatory statutes that do not expressly or impliedly
identify a statutory right of action.” Haage v. Steies, 555 N.W.2d 7, 8 (Minn. Ct.
App. 1996). Further, “when a statute expressly provides a particular remedy . . .
[plaintiffs] do not have an implied private right to sue.” Findling v. Group Health
Plan, Inc., 998 N.W.2d 1, 20 (Minn. 2023), citing Becker, 737 N.W.2d at 207.
Section 12.39 does not expressly, nor by clear implication, identify a statutory
right of action. In fact, the statute itself has a particular remedy: “a person who
willfully violates a provision of this chapter . . . is guilty of a misdemeanor and upon
conviction must be punished by a fine not to exceed $1,000, or by imprisonment for
not more than 90 days.” Minn. Stat. § 12.45 (emphasis added). See Becker, 737
N.W.2d at 208 (“The plain language of the statute indicates that the legislature chose

-- 8 of 9 --

-9-
to impose criminal, but not civil, penalties . . . .”). Because § 12.39 does not create
a private right of action, the district court properly dismissed Brokken’s claim.
* * * * * * *
The judgment is affirmed in part, reversed in part, and the case remanded for
further proceedings consistent with this opinion.
______________________________

-- 9 of 9 --