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The NEW YORK CITY MUNICIPAL LABOR COMMITTEE, Uniformed Sanitationmen's Association, Local 831 IBT, Police Benevolent Association, Uniformed Firefighters Association Local 94 I.A.F.F. AFL-CIO, Uniformed Fire Officers Association, United Federation of Teachers, Council of School Supervisors and Administrators, International Brotherhood of Teamsters, Local 237, IBT, Correction Officer's Benevolent Association, Communication Workers of America NYC Local 1180, Service Employees International Union, Local 246, Lieutenants Benevolent Association, Sergeant's Benevolent Association, Detectives Endowment Association, Captains Endowment Association, Sanitation Officers’ Association, Local 444, Uniformed Sanitation Chiefs Association, International Union of Operating Engineers, Local 30, District Council No. 9 Painters & Allied Trades, International Brotherhood of Electrical Workers, Local 3, International Union of Operating Engineers, Local 891, Service Employees International Union, Local 300, Boilermakers, Blacksmiths & Metal Work Mechanics, Local 5, Service Employees International Union Supervisors, Local 621, Organization of Staff Analysts, N.Y.C. District Council of Carpenters, UBCJA, Correction Captains’ Association, Inc., United Probation Officers Association, Allied Building Inspectors, Local 211, Plaintiff, v. The CITY OF NEW YORK, Board of Education of the City School District of the City of New York, the New York City Housing Authority, Defendant.
On August 24, 2021, Dr. Dave A. Chokshi, Commissioner of the New York City Department of Health and Mental Hygiene (“DOHMH”), issued an order requiring all employees of defendant the Board of Education of the City School District of the City of New York (“DOE”) to submit proof of their COVID-19 vaccination by September 27, 2021(the “DOE Order”). In response, certain of the plaintiffs here — i.e., the United Federation of Teachers (“UFT”), the Council of School Supervisors and Administrators (“CSA”), Teamsters Local 237, and the International Union of Operating Engineers (“IUOE”) Local 891 — engaged in bargaining with the DOE as to the implementation of the DOE Order, which led to an arbitration proceeding before Arbitrator Martin F. Scheinman. At the conclusion of the arbitration proceeding, Mr. Scheinman issued binding awards (the “Awards”), which provided, as relevant here, that unvaccinated employees who did not receive a medical or religious accommodation exempting them from the DOE Order could elect to either separate from service with an incentive and retain health benefits through September 5, 2022, or remain on an extended unpaid leave through September 5, 2022 while receiving health benefits (NYSCEF Doc. Nos. 3, 4, 19, 20). The Awards further provided that, beginning on December 1, 2021, the DOE would seek to unilaterally separate those unvaccinated employees who had not already separated from service (Id.).
On October 20, 2021, Commissioner Chokshi issued another order directing all employees of defendant the City of New York (the “City”), with certain exceptions inapplicable here, to submit proof of their COVID-19 vaccination on or before October 29, 2021 (the “City Order”). Any City employee who did not provide this proof would be excluded from their respective workplaces beginning on November 1, 2021.
Following the City Order, certain other plaintiffs — i.e., District Council 37, the Uniformed Sanitationmen's Association, the Uniformed Sanitation Officers Association, the Uniformed Sanitation Chiefs Association, Teamsters Local 237, Communications Workers of America Locals 1180, 1181, and 1182, the Organization of Staff Analysts, the Civil Service Bar Association, the United Probation Officers Association, the Fire Alarm Dispatchers Benevolent Association, the Deputy Sheriffs Association, the New York State Nurses Association, Doctor's Council SEIU, SE1U Locals 246, 300, and 621, International Brotherhood of Electrical Workers Local 3, Boilermakers Local Lodge 5, New York City District Council of Carpenters, IUOE Locals 15 and 30, Locals 1969 and 806 of Painters District Council 9, Plumbers Local 1, Steamfitters Local 638, and the International Organization of Masters, Mates, and Pilots — entered into negotiations with defendants which resulted in separate memoranda of agreement 1 (“MOA”).
The MOAs, like the Awards, provided that unvaccinated employees who had not received medical or religious exemptions from the DOE Order or City Order could elect to separate from service with an incentive and retain health benefits or remain on an extended unpaid leave through a date certain while receiving health benefits (NYSCEF Doc. No. 5-16). The MOAs also provided that, beginning on December 1, 2021, the City would seek to unilaterally separate any unvaccinated employee without an exemption (Id.). The Awards and MOAs also set forth procedures for unvaccinated employees to apply for exemptions from the City's vaccination mandate and the procedure for appealing any denial of their application (NYSCEF Doc. Nos. 3-16).
On January 31, 2022, the City issued termination letters to approximately 4,000 employees who had not submitted proof of vaccination and had not received a medical or religious exemption notifying them that their employment and health insurance coverage would be terminated on February 11, 2022.
Plaintiffs commenced this action on February 8, 2022 — two days before the scheduled termination of these employees — seeking a declaratory judgment that the termination of these employees violated their procedural due process rights and a permanent injunction preventing defendants from terminating these unvaccinated employees. Concurrent with their commencement of this action, plaintiffs filed an order to show cause seeking a temporary restraining order and preliminary injunction granting the relief demanded in their complaint. The order to show cause was received by the Court on February 10, 2022 and granted without a temporary restraining order on the same day.
On February 11, 2022, the City terminated 1,328 unvaccinated employees who had not received necessary exemptions (the “Terminated Employees”) (NYSCEF Doc. No. 56 [Pollack Affirm. at ¶8]).
Thereafter, oral argument on the instant motion was held on March 1, 2022, after which the Court reserved decision. For the reasons set forth below, plaintiffs’ motion is denied.
In light of the fact that the terminations at issue have already been carried out, plaintiffs’ motion effectively seeks a mandatory injunction restoring the Terminated Employees to their former employment. To establish their entitlement to injunctive relief on this motion, plaintiffs must therefore show a “clear and substantial likelihood of success on the merits” (Quinn v. Cuomo, 69 Misc. 3d 171, 175, 126 N.Y.S.3d 636 [Sup. Ct., Queens County 2020], affd as mod, 183 A.D.3d 928, 125 N.Y.S.3d 120 [2d Dept. 2020]) as well as “immediate and irreparable harm absent injunctive relief” and that “a balancing of the equities favors the movant's position” (Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191 ). Plaintiffs have not satisfied this standard.
Likelihood of Success On The Merits
Plaintiffs have not established a clear and substantial likelihood of success on their procedural due process claim. “A procedural due process claim requires the plaintiff to establish (1) possession by the plaintiff of a protected liberty or property interest, and (2) deprivation of that interest without constitutionally adequate process” (Garland v. New York City Fire Dept., 574 F.Supp.3d 120, 127 [E.D.N.Y. 2021] [internal citations omitted]). It is undisputed that the Terminated Employees are public employees who have a constitutionally protected property interest in their continued employment (See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 ). The parties disagree, however, as to what process is constitutionally adequate to deprive them of that employment.
Plaintiffs argue that the procedural due process rights of the Terminated Employees were violated by the defendants’ failure to follow the disciplinary procedures set forth in Civil Service Law §§ 72, 73 and 75, Education Law §§ 3020 and 3020-a, and New York City Administrative Code §§ 14-115, 15-113, and 16-106, as well as the plaintiffs’ respective collective bargaining agreements, prior to their termination. Defendants respond that, under New York law, the termination of a public employee based on the employee's failure to satisfy a qualification of employment unrelated to job performance, misconduct, or competency does not implicate the disciplinary procedures suggested by plaintiffs (See e.g., Matter of Felix v. New York City Dept. of Citywide Admin. Services, 3 N.Y.3d 498, 505-06, 788 N.Y.S.2d 631, 821 N.E.2d 935 ; Matter of New York State Off. of Children and Family Services v. Lanterman, 14 N.Y.3d 275, 282, 899 N.Y.S.2d 726, 926 N.E.2d 233 ) and that the vaccinate mandate put in place by the DOE Order and City Order created such a qualification of employment obviating the need to follow these statutory procedures. The Court agrees with defendants.
The clear purpose of the DOE Order and the City Order is to prevent the spread of a deadly disease that has ravaged New York City and the world. Neither is an attempt to regulate the conduct of City employees in performing their jobs. By contrast, all of the statutes which plaintiffs point to “prescribe[ ] the procedures for removal of a protected employee charged with delinquencies in the performance of his [or her] job” (Matter of Felix v. New York City Dept. of Citywide Admin. Services, 3 N.Y.3d 498, 505, 788 N.Y.S.2d 631, 821 N.E.2d 935  quoting Mandelkern v. City of Buffalo, 64 A.D.2d 279, 281, 409 N.Y.S.2d 881 ). Since the Terminated Employees’ failure to be vaccinated is unrelated to the performance of their job, these statutes simply do not apply 2 (Matter of Felix v. New York City Dept. of Citywide Admin. Services, 3 N.Y.3d 498, 505, 788 N.Y.S.2d 631, 821 N.E.2d 935 ; see also Matter of New York State Off. of Children and Family Services v. Lanterman, 14 N.Y.3d 275, 282, 899 N.Y.S.2d 726, 926 N.E.2d 233  [dismissal of plaintiffs for failure to meet credentials required as qualifications of employment was not disciplinary and therefore no CSL § 75 hearing required before termination]); Matter of O'Connor v. Bd. of Educ. of City School Dist. of City of Niagara Falls, 48 A.D.3d 1254, 1255, 852 N.Y.S.2d 537 [4th Dept. 2008] [Education Law § 3020 and 3020-a inapplicable to teacher's dismissal for failure to satisfy residency requirements for their positions]).
Indeed, every court that has considered this question has reached the same conclusion. In multiple Article 78 proceedings by tenured NYC DOE teachers challenging their placement on leave without pay for failing to comply with the DOE Order, the courts of this State have uniformly found that the vaccination mandate created a condition of employment for DOE employees and that the petitioners in those actions were therefore not entitled to the process required by Education Law §§ 3020 and 3020-a (See e.g., O'Reilly v. Bd. of Educ. of the City School Dist. of the City of New York, 2022 N.Y. Slip Op. 30173(U), 2022 WL 180957 [Sup. Ct., N.Y. County 2022]; Loiacono v. The Bd. of Educ. of the City School Dist. of the City of New York, 2022 N.Y. Slip Op. 30758[U], 3, 2022 WL 987838 [Sup. Ct., New York County 2022]; Maniscalco v. The Bd. of Educ. of the City School Dist. of the City of New York, 2022 WL 797971 [Sup. Ct., New York County 2022]). Plaintiffs argue these cases are not applicable here because they involve the petitioners’ placement on leave without pay rather than their termination. This distinction is immaterial; a loss of pay, like termination, constitutes a “deprivation of property rights” implicating procedural due process considerations (Sanford v. Rockefeller, 35 N.Y.2d 547, 558, 364 N.Y.S.2d 450, 324 N.E.2d 113 ; see also Garland v. New York City Fire Dept., 574 F.Supp.3d at 130 [E.D.N.Y. 2021] [“the deprivation of Plaintiffs’ right to continued employment and pay occurred when Plaintiffs failed to timely apply for a religious or medical exemption and were placed on LWOP status”]).
Several federal district courts in New York have also concluded that the vaccination mandate in the DOE Order and City Order creates a condition of employment, making compliance with the statutory procedures proposed by plaintiffs prior to termination inappropriate and unnecessary (See Broecker v. New York City Dept. of Educ., ––– F.Supp.3d ––––, ––––, 2022 WL 426113 at *8 [E.D.N.Y. 2022]; Marciano v. de Blasio, ––– F.Supp.3d ––––, ––––, 2022 WL 678779 at *10 [S.D.N.Y. 2022]; Garland v. New York City Fire Dept., 574 F.Supp.3d at 127 [E.D.N.Y. 2021]).
Plaintiffs also contend that the fact that some unvaccinated employees have been granted accommodations via weekly testing on medical or religious grounds and have been allowed to work remotely demonstrates that vaccination is not an employment qualification (NYSCEF Doc. No. 27 [Plaintiffs’ Memo. of Law. at p. 13]). But, as defendants note “[t]he medical or religious accommodations afforded are hardly discretionary; rather, they are altogether required by federal, state, and city law. While the grant or denial of an accommodation amounts to an exercise of employer discretion, City, State and Federal law requires an employer to accept and consider such requests” (NYSCEF Doc. No. 54 [Defendants’ Memo. of Law. in Opp. at p. 9]).
Finally, plaintiffs observe that the City continued health insurance for unvaccinated employees past the December 1, 2021 deadline set forth in the Awards and MOA and argue that the City would not have been able to do so if vaccination was truly a “qualification” for employment. However, the Court finds that the fact that the City continued the health insurance for unvaccinated employees during the period when there was still a possibility that these employees could remain in their jobs by getting vaccinated or receiving an exemption does not compel the conclusion suggested by plaintiffs
For these reasons, plaintiffs have not established a likelihood of success on their claim for violation of the Terminated Employees’ procedural due process rights.
Plaintiffs have also failed to establish any irreparable harm to the Terminated Employees. While the Court does not minimize the harm inherent in the loss of one's job, it is well-settled that such a loss is “compensable by money damages and reinstatement to said employment” and therefore is not, as a matter of law, irreparable (New York City Mun. Labor Comm. v. City of New York, 73 Misc. 3d 621, 628, 156 N.Y.S.3d 681 [Sup. Ct., New York County 2021]; see also Mabry v. Neighborhood Def. Serv., Inc., 88 A.D.3d 505, 506, 930 N.Y.S.2d 193 [1st Dept. 2011]). Plaintiffs argue that after many months on unpaid leave the additional cost the Terminated Employees would bear in obtaining health insurance through COBRA is financially onerous. Ultimately, however, any increase in health insurance costs can also be recovered as money damages should plaintiffs prevail here (See Broecker v. New York City Dept. of Educ., ––– F.Supp.3d at ––––, 2022 WL 426113 at *12 [E.D.N.Y. 2022] [“Plaintiffs’ alleged harms are tethered to their ability to pay for COBRA stemming from their loss of salary from the NYC DOE, not to their complete inability to secure alternative medical benefits”]).
Balance of the Equities
Finally, the balance of equities weighs in defendants’ favor. The harm to the Terminated Employees in losing their jobs, while serious, does not overcome the City's considered efforts to prevent the spread of a deadly disease among City employees and the public whom they serve (See e.g., Broecker v. New York City Dept. of Educ., ––– F.Supp.3d ––––, 2022 WL 426113 [E.D.N.Y. 2022] [“the importance of safeguarding the public health and safety of NYC DOE schools and all who work or learn there, and the public interest, weigh heavily in favor of upholding the implementation by the NYC DOE of the Vaccination Mandate ordered by the Commissioner of Health”]; Garland v. New York City Fire Dept., 574 F.Supp.3d 120 [E.D.N.Y. 2021] [“On balance, the equities at stake and the importance of safeguarding the public health and safety weigh in favor of denying the preliminary injunction”]).
In light of the foregoing, it is
ORDERED that plaintiffs’ motion for injunctive relief is denied in its entirety.
This constitutes the decision and order of the Court.
1. The remaining plaintiffs — i.e., the Police Benevolent Association, the Lieutenant's Benevolent Association (“LBA”), the Uniformed Firefighters Association, the Uniformed Fire Officers Association (“UFOA”), the Correction Officers Benevolent Association, the Sergeants Benevolent Association, the Detectives Endowment Association, the Correction Captains Association, the Assistant Deputy Warden/Deputy Wardens Association, and the Captains Endowment Association — are not parties to the Awards or MOA.
2. Even assuming that the failure to get vaccinated was a disciplinary issue, a disciplinary hearing for a tenured City employee is not required when there is “no factual issue to be determined at a hearing” (Moogan v. N.Y. State Dep't of Health, 8 A.D.3d 68, 69, 778 N.Y.S.2d 161 [1st Dept. 2004]). Here, plaintiffs have not demonstrated any credible rationale for what fact issue would require a determination since it is conceded that the Terminated Employees did not get vaccinated and did not receive a medical or religious exemption.
Judy H. Kim, J.
Response sent, thank you
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Docket No: Index No. 151169/2022
Decided: April 21, 2022
Court: Supreme Court, New York County, New York.
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