govinfo:USCOURTS-cand-3_22-cv-06119-7

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United States District Court 
Northern District of California 
 
 
 
 
 
UNITED STATES DISTRICT COURT 
 
NORTHERN DISTRICT OF CALIFORNIA 
 
 
GABRIEL CHAVEZ, et al., 
Plaintiffs, 
v. 
 
SAN FRANCISCO BAY AREA RAPID 
TRANSIT DISTRICT, 
Defendant. 
 
 
 
No.  C 22-06119 WHA    
 
 
 
ORDER GRANTING DEFENDANT'S 
MOTION IN LIMINE NO. 3 
 
 
INTRODUCTION 
In this Title VII religious accommodation action, defendant-employer seeks to exclude 
evidence of requests for religious exemptions from employees who are not plaintiffs in this 
action.  This motion in limine is GRANTED, unless defendant opens the door. 
STATEMENT 
During the pandemic, BART’s Board of Directors approved a mandate requiring all 
employees and board members to be vaccinated against COVID-19.  The mandate created an 
exemption and accommodation procedure for those who qualified for either medical or 
religious accommodations.  A total of 205 employees submitted requests for exemptions and 
accommodations:  181 sought religious exemptions, 17 sought medical exemptions, and 7 
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requested both.*  Of the 188 requests for religious exemption and accommodation, 40 
applicants did not complete the application process.  Of the 148 that did, 70 were granted 
religious exemptions, the remainder denied.  Of the 70 who were granted exemptions, none 
were granted an accommodation.   
Of the 24 medical exemption and accommodation requests, 10 completed the process, 
and eight were granted an accommodation, namely, an unpaid leave of absence until such time 
as the employee could be vaccinated.  No employee was permitted to work while unvaccinated.   
Plaintiffs’ Title VII and FEHA claims went to trial on July 8, 2024.  At the time of the 
pretrial conference, there were 20 plaintiffs remaining in the three consolidated actions (Dkt. 
No. 115 at 3).  After a week of evidence and roughly three days of deliberation, the jury came 
to an impasse, and ultimately stalled.  The Court accepted a partial verdict for each plaintiff on 
their prima facie case, the jury was discharged, and a retrial on the remainder of the issues was 
set for October 15 (Dkt. No. 151).  At the time of this order’s filing, 8 plaintiffs are set to retry 
their claims, the remainder having settled.   
PROCEDURAL HISTORY 
Prior to the first trial, BART brought a motion in limine to exclude evidence or argument 
concerning the denial of requests for religious exemption or accommodation not in suit under 
Federal Rules of Evidence 403.  That motion was granted in part and denied in part.  The final 
pretrial order held:   
 
The fact that BART was unable to accommodate any individual 
with a religious exemption may be relevant.  However, there is a 
risk that valuable trial time will be wasted litigating the propriety 
of individual accommodation decisions not in suit.  To minimize 
that risk, plaintiffs will be allowed to elicit evidence regarding the 
total number of exemptions and accommodations requested and 
granted from only one witness.  Plaintiffs agreed that that will be 
BART director of leave management Rodney Maplestone, who 
was involved in the consideration of every accommodation 
request.  A limiting instruction will be given if necessary. Plaintiffs 
 
* The numbers relied upon are taken from the declaration of Rodney Maplestone in support of 
BART’s opposition to plaintiffs’ motion for class certification (Dkt. No. 42-1).  There has been 
slight variance in the number of total exemption requests cited (both across parties and across 
time) but those differences are immaterial to the present analysis.   
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may not otherwise elicit such testimony. 
 
(Dkt. No. 115 at 5).   
At trial, plaintiffs did not introduce any such evidence, despite ample opportunity to do 
so.  On August 28, after the conclusion of the first trial, the Court issued an order to show 
cause stating that “[o]n further reflection, the Court is inclined to reverse itself and hold that 
any evidence pertaining to exemption and accommodation requests and determinations not in 
suit should be excluded” (Dkt. No. 170).  That order invited, and the Court received, further 
briefing on the issue.  This order follows.   
ANALYSIS 
Rule 403 provides that:   
 
The court may exclude relevant evidence if its probative value is 
substantially outweighed by a danger of one or more of the 
following: unfair prejudice, confusing the issues, misleading the 
jury, undue delay, wasting time, or needlessly presenting 
cumulative evidence. 
 
FRE 403.   
Having received the benefit of hearing all the evidence at trial, this order reverses the 
final pretrial order’s holding as to defendant’s third motion in limine.  Introduction of evidence 
or argument pertaining to exemption and accommodation requests and determinations not in 
suit are excluded.  That evidence, even if introduced in the limited manner set out in the final 
pretrial order, presents a danger of unfair prejudice and undue delay that substantially 
outweighs its probative value.   
1. THE PROBATIVE VALUE OF THE EVIDENCE IS MINIMAL.   
BART’s exemption and accommodation decisions (and plaintiffs’ prima facie case and 
defendant’s affirmative defense at trial) rest on highly individualized inquiries.  An exemption, 
for example, required a bona fide religious belief that conflicted with the vaccine requirement.  
Applicants for the religious exemption presented a broad swathe of religious beliefs:  
“Christianity,” “the teachings of the bible,” “Catholic,” “Islamism,” “non-denominational 
Christianity,” and “born again Christian” are just a few.  Even within a single faith, the specific 
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tenet necessitating abstention varied.  Those who professed some form of Christian belief, for 
example, cited qualms with the research and development process of the vaccines, the 
alteration of a divinely created immune system, and the injection of “foreign biological 
substances.”  Some provided letters from various pastors and churches, or certificates of 
baptism.  Others appended United Nations declarations and California Assembly bills to their 
exemption requests.  Others still expressed concerns about the medical consequences of 
vaccination and cited to public resources such as the CDC’s Vaccine Adverse Event Reporting 
System.  Some provided supplemental documentation upon BART’s invitation, others were 
interviewed by a panel of BART employees.  Whether or not any one request did in fact rest on 
a bona fide religious belief presents an individual inquiry that requires the consideration of 
evidence pertaining to the applicant, and only the applicant.  It is unlikely that the testimony of 
any one plaintiff in this suit, for example, will shed any light on the propriety of BART’s 
exemption decisions not in suit. 
BART’s accommodation decisions (and affirmative defense at trial) are likewise 
individualized inquiries.  True, BART’s position – that the health and safety risk posed by 
unvaccinated employees constituted an undue hardship – is, to some degree, susceptible to 
common proof.  The testimony of BART’s expert epidemiologist and expert industrial 
hygienist, for example, go to the relative efficacy of the COVID-19 vaccine and other potential 
accommodations, and illuminate BART’s decision-making as a general matter.  Determining 
the propriety of any one accommodation decision nevertheless requires a return to individual 
facts.  It is not enough that the vaccine was the most effective means of protecting employees 
and patrons:  BART must ultimately establish that the  particulars of each plaintiff’s essential 
job duties did not allow for an accommodation absent undue hardship.    
The latter issue proved crucial to the first jury’s analysis of BART’s affirmative defense.  
Plaintiff Phi Le is illustrative.  Plaintiff Le was employed as a community service officer in the 
special parking enforcement team.  He testified that he “was responsible for going to a certain 
station [each] day and just patrolling the parking lots and writing citations if I needed to” (Dkt. 
No. 153 at 70).  He testified that he traveled alone in his assigned vehicle, that no other 
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employees used his car when he clocked out, and that the low ridership during the pandemic 
meant that he spent his day “patrolling  . . . empty lots” (Dkt. No. 153 at 82).  The rare patron 
interaction took place outdoors, from a significant distance.  Plaintiff Le further attested to 
various specific accommodations that would all but eliminate the time he spent in BART 
locker rooms, bathrooms, and other indoor facilities.   
BART, meanwhile, argued that Plaintiff Le’s work “had to be done in person and could 
not be isolated from other people, not from other employees and not from patrons.  They 
worked face-to-face with the public and other employees” (Dkt. No. 153 at 32).  BART’s chief 
of police, Kevin Franklin, testified that because the pandemic largely eliminated the need for 
parking enforcement, Plaintiff Le was re-assigned to “station duty” (Dkt. No. 155 at 160).  Per 
Chief Franklin, Plaintiff Le’s duties included “being visible around fare gates and public areas 
of the station, riding trains, and providing a uniform presence  to reassure the public,” all of 
which increased his public exposure “from normal parking duties” (ibid.).  In sum, while 
Plaintiff Le testified that the pandemic had resulted in a daily routine void of interpersonal 
interactions, BART asserted its response to the pandemic increased Plaintiff Le’s public 
exposure from normal parking duties.   
These details proved crucial to the first jury’s evaluation of BART’s accommodation 
decision as to Plaintiff Le.  The jury issued a note requesting a timeline of Plaintiff Le’s 
parking duties (to which he testified) as opposed to his station duties (to which Chief Franklin 
testified), and a significant portion of the two witnesses’ testimony was re-read to the jury 
(Dkt. No. 147 at 2).   
The same is true for those who worked as station agents (such as Plaintiffs Harrison and 
Richardson).  BART labored during the first trial to establish that “station agent work has to be 
done in person, cannot all be behind the glass in the booth, and important parts of it involve 
being face-to-face with patrons and other employees,” while plaintiffs testified that, in their 
day-to-day practice, they managed to perform the duties asked of them with little to no contact 
with others  (Dkt. No. 153 at 32).  Plaintiffs who worked as train conductors likewise testified 
to their individual practices when “sweeping” trains and performing other job tasks, while 
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BART introduced evidence suggesting that those same job duties required close contact with 
patrons.    
Given the individualized nature of those inquiries, the probative value, if any, of 
outcomes not in suit is minimal.   
2. THE EVIDENCE’S MINIMAL PROBATIVE VALUE IS SUBSTANTIALLY 
OUTWEIGHED BY THE DANGER THAT IT WILL CONFUSE THE ISSUES, UNFAIRLY 
PREJUDICE BART, CAUSE DELAY AND WASTE TIME.   
Plaintiffs argue that accommodation requests not in suit are “highly relevant” to the 
extent that they reflect “[t]he extent to which an employer has engaged in the interactive 
process and presented potential accommodations” (Dkt. No. 77 at 7).   
First, introduction of the evidence for that purpose is likely to confuse the issues.  
Plaintiffs’ argument regarding BART’s engagement with the “back-and-forth” of the 
accommodation process was addressed on summary judgment.  A March 2024 order 
explained:   
 
[P]laintiffs argue that BART’s burden must be taken up in two 
consecutive steps: “the employer must start by demonstrating that 
it made a good faith effort to accommodate the religious beliefs of 
the employee.  After proving that it made those good faith efforts 
and that the attempts were unsuccessful, the employer must show 
an undue hardship” (Reply 11).  Plaintiffs quote Heller v. EBB 
Auto Co.’s directive that “at a minimum, the employer [is] required 
to negotiate with the employee in an effort reasonably to 
accommodate the employee’s religious beliefs” (Reply 12).  8 F.3d 
1433, 1438 (9th Cir. 1993).  The argument goes:  no plaintiffs were 
offered accommodation, therefore no reasonable effort was made, 
therefore BART fails before ever reaching undue hardship (Reply 
12).  However, the sentence immediately after the Heller passage 
quoted by plaintiffs reads: “[t]he employer need not make such an 
effort if it can show that any accommodation would impose 
undue hardship.”  8 F.3d at 14[40]. 
 
(Dkt. No. 72 at 15) (emphasis added).  The issue of an employer’s engagement with the 
interactive process and presentation of potential accommodations is tangential.  Moreover, 
each plaintiff testified extensively as to their impressions of BART’s engagement in exactly 
that process during the first trial.  They will no doubt do the same during the second.  To allow 
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plaintiffs to introduce cumulative evidence on this point would only lead the jury further astray 
from the issues to be decided.   
Second, introduction of this evidence will either unfairly prejudice BART or waste time 
and cause delay.  Plaintiffs have made clear that they expect this evidence to support the 
inference that BART did not give genuine consideration to any of the exemption or 
accommodation decisions at issue.  BART cannot combat that inference absent significant 
delay and waste of trial time.   
There are now only eight plaintiffs remaining in suit.  About 138 completed exemption 
and accommodation requests are therefore out of suit.  BART’s rebuttal of the inference 
plaintiffs wish to levy against them will require a march through each of those decision, first to 
address the degree to which BART did or did not engage in a good faith back-and-forth with 
the individual applicant, and second to lay out the grounds for BART’s rejection of the 
individual applicant’s exemption or accommodation.  Plaintiff Le’s example above is 
illustrative of the factual nuances that need be addressed in any such effort.  The jury and the 
Court do not have the time and resources necessary to endure that march, in light of the 
minimal relevance and probative value of the evidence.  Nor can BART be asked to simply 
live with the inference that they rejected every applicant out of hand, absent an opportunity to 
present that countervailing evidence.  
Plaintiffs’ contrary arguments do not move the needle.   
First, plaintiffs argue that Groff v. DeJoy requires consideration of the decisions not in 
suit, quoting the Supreme Court’s instruction that the test be applied “in a manner that takes 
into account all relevant factors in the case at hand, including the particular accommodations 
at issue and their practical impact in light of the nature, size, and operating cost of an 
employer.”  600 U.S. 4447, 470-71 (2023) (emphasis added).  The “particular accommodations 
at issue” “in the case at hand” are those that are in suit.  As detailed above, the out-of-suit 
exemption and accommodation decisions have little bearing on “the particular 
accommodations at issue” here.  The inquiry is an individualized one, and the fact that some 
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number of individuals had their requests denied has little bearing on whether Plaintiff Le, for 
example, could be reasonably accommodated without undue hardship to BART.   
Second, plaintiffs cite to appellate decisions in “corollary Title VII contexts” that have 
admitted evidence regarding accommodations not in suit and suggest that not doing so here 
“would appear to constitute reversible error” (Dkt. No. 178 at 4-6).   
The decisions cited each considered claims of disparate treatment and are therefore 
inapposite.  Legg v. Ulster County is illustrative.  820 F.3d 67 (2d Cir. 2016).  The appellant, a 
corrections officer employed in defendant county’s jail, claimed that the county “unlawfully 
discriminated against her on the basis of her pregnancy when it denied her request for an 
accommodation under its light duty policy, pursuant to which only employees injured on the 
job were eligible for light duty assignments.”  Id. at 69.  Leggs explained that a pregnancy 
discrimination claim founded on a disparate treatment theory requires a plaintiff to show that: 
 
 (i) “that she belongs to the protected class,” (ii) “that she sought 
accommodation,” (iii) “that the employer did not accommodate 
her,” and (iv) “that the employer did accommodate others “similar 
in their ability or inability to work.” 
 
Id. at 73 (quoting Young v. United Parcel Serv., Inc., 575 U.S. 206, 208 (2015)) (emphasis 
added).  The burden then shifts to the defendant-employer, and assuming the employer 
successfully rebuts the above, the burden returns to the plaintiff, who must show that the 
employer imposed a “significant burden on pregnant workers,” such as “by showing ‘that the 
employer accommodates a large percentage of nonpregnant workers while failing to 
accommodate a large percentage of pregnant workers.’” Id. at 74 (quoting Young, 575 U.S. at 
209).  That plaintiffs asserting a disparate treatment theory ought to be able to admit evidence 
of employer actions not in suit is a matter of common sense:  how else is a plaintiff to prove 
that they were treated differently from others?   
 Plaintiffs’ case does not rest on a disparate treatment theory.  Indeed, BART did not 
allow any workers to work unvaccinated while the mandate was in place.  Evidence of 
exemption and accommodation decisions not in suit have minimal probative value to the 
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theories that are at issue here.  That value is substantially outweighed by the danger of 
confusing the issues, prejudicing BART, and causing delay and waste of time. 
CONCLUSION 
For the aforementioned reasons, defendant’s third motion in limine is GRANTED, unless 
defendant opens the door. 
 
IT IS SO ORDERED. 
 
Dated:  October 1, 2024. 
 
  
WILLIAM ALSUP 
UNITED STATES DISTRICT JUDGE 
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