Brokken v. Hennepin County

Background

Petra Brokken worked as a Hennepin County public defender from 1996 until her retirement in 2022. In response to the COVID-19 pandemic, the County adopted a policy requiring employees either to receive a COVID-19 vaccine or to test weekly. The policy and later vaccine mandate allowed discipline, including termination, for noncompliance.

Brokken requested religious exemptions from both vaccination and weekly testing. The County granted her exemption from vaccination and initially accommodated her objection to testing by allowing her to work remotely at a suburban office. When in-person appearances resumed, the County told her that weekly testing would apply. In June 2022, the County informed her that she could no longer work entirely remotely and warned that failing to test would result in termination. Brokken resigned instead of testing and then sued, alleging that she had retired under duress.

She asserted claims for religious discrimination and failure to accommodate under Title VII of the Civil Rights Act of 1964; religious-discrimination and failure-to-accommodate claims under the Minnesota Human Rights Act; discrimination, failure-to-accommodate, and unlawful-medical-examination claims under the Americans with Disabilities Act; age discrimination under the Age Discrimination in Employment Act; and wrongful discharge under Minnesota Statute § 12.39.

Motion-to-dismiss standard

The court reviewed the complaint under Federal Rule of Civil Procedure 12(b)(6), which asks whether the pleaded facts plausibly show a right to relief. At this stage, the court accepted factual allegations as true and viewed reasonable inferences in Brokken’s favor, but it did not have to accept legal conclusions presented as facts. The court also considered documents embraced by the complaint and certain public records.

Adverse employment action and constructive discharge

The court held that every claim required an adverse employment action, meaning a tangible change in working conditions that causes a material employment disadvantage. A constructive discharge is one form of adverse employment action and requires allegations showing both that a reasonable person would find the working conditions intolerable and that the employer intended to force the employee to quit.

The court found that Brokken had not pleaded an objectively intolerable working condition. The only possible condition was the requirement to test weekly when working in person. The court rejected reliance on Brokken’s personal view that testing was unacceptable, noting that the analysis uses an objective standard. It also stated that the risk of losing accrued benefits arose only because she refused to test and that loss of pay alone is insufficient to establish constructive discharge.

The court further held that Brokken had not alleged facts showing that Hennepin County intended to pressure her to resign. The County’s policies applied to employees generally, and its granting of vaccination exemptions, offering testing alternatives, and permitting remote work when possible suggested an intent to keep her employed. Because Brokken did not adequately plead an adverse employment action, the court concluded that all of her claims failed.

Title VII

For direct religious discrimination, the court found that Brokken had not adequately alleged either an adverse employment action or that employees outside her protected class were treated differently. The vaccine mandate applied to all employees, and the weekly-testing requirement resulted from her vaccination status rather than her religion, according to the court.

For failure to accommodate, the court questioned whether Brokken had adequately alleged a bona fide religious belief—that is, a belief rooted in religion rather than personal preference—and whether that belief conflicted with weekly testing. The court did not decide whether her objection concerning the treatment of cows was religious, but found that it was not sufficiently connected to the testing requirement. It also found that Brokken had not explained how an at-home saliva test would require her to provide biological material to someone else or how objections to the development of the tests specifically conflicted with taking them. Because she had not adequately pleaded this required conflict, the court dismissed the failure-to-accommodate claim without reaching whether the County’s proposed accommodation would have caused an undue hardship.

Minnesota Human Rights Act

The court applied the same analysis to Brokken’s Minnesota Human Rights Act religious-discrimination claim and dismissed it. The court also declined to recognize a Minnesota Human Rights Act cause of action for failure to accommodate a religious belief, noting that Minnesota courts had reached conflicting conclusions and that the statute does not expressly require religious accommodations. It dismissed that claim as well.

Americans with Disabilities Act

The court dismissed Brokken’s ADA discrimination and failure-to-accommodate claims because she did not allege a disability. Specifically, she did not allege how being unvaccinated substantially limited her ability to perform a major life activity.

The court also dismissed the ADA claim based on unlawful medical examinations. It held that COVID-19 vaccination and testing do not constitute an unlawful medical examination under the ADA, so it did not need to decide whether a business-necessity exception applied. The court noted that this type of ADA claim did not require Brokken to allege a disability, but it did require a tangible injury, which the court found lacking because no unlawful medical examination occurred.

Age Discrimination in Employment Act

The court dismissed the age-discrimination claim because Brokken had not adequately pleaded an adverse employment action. It also found no sufficient inference that age caused her resignation: the age of her replacement was unknown, no facts indicated that age was the but-for cause of her resignation, and the County’s policies applied regardless of age.

Minnesota refusal-of-treatment statute

The court held that Minnesota Statute § 12.39 does not create a private right of action, meaning the statute does not allow an individual to bring a lawsuit for its alleged violation. The court stated that this was independently dispositive of Brokken’s claim.

The court also concluded that the claim would fail for additional reasons even if the statute allowed a private lawsuit. It stated that § 12.39 applies during a national-security or peacetime emergency, and that the COVID-19 emergency had ended when Brokken’s testing requirement matured. The court found that Hennepin County was acting as an employer rather than as a sovereign, found the County’s policy and mandate reasonable, and held that Brokken had not shown that the County required her to violate the law, as required for a wrongful-discharge claim.

Disposition

The court granted Hennepin County’s motion to dismiss and dismissed Brokken’s complaint without prejudice. The order did not state that the motion itself was granted without prejudice; it expressly stated that the complaint was dismissed without prejudice.