Nicole BROECKER, et al, Plaintiff, v. New York City Department of Education, et al, Defendants.
21-CV-6387(KAM)(LRM)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
February 11, 2022
KIYO A. MATSUMOTO, United States District Judge:
Case 1:21-cv-06387-KAM-LB Document 89 Filed 02/11/22 Page 1 of 43 PageID #: 2718
MEMORANDUM & ORDER
The 93 named Plaintiffs in the Amended Complaint (collectively “Plaintiffs“) have not received at least a first dose of a COVID-19 vaccine and are employed and work at schools operated by the New York City Department of Education (“NYC DOE“), and are members of various unions named as Defendants. Named Defendants are the NYC DOE; the City of New York; Meisha Porter, the Chancellor of the NYC DOE; the United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO (“UFT“); Michael Mulgrew, President of the UFT; Counsel of Supervisors and Administrators (“CSA“), Mark Cannizzaro; District Council 37, AFSCME AFL-CIO, Local 372
Defendants NYC DOE and the City of New York are entities responsible for enacting and enforcing a COVID-19 vaccination mandate (the “Vaccination Mandate“) issued pursuant to an Order from the New York City Commissioner of Health and Mental Hygiene (“COH Order“) on August 24, 2021, requiring that all NYC DOE employees receive at least a first dose of a COVID-19 vaccination by September 27, 2021, in order to work at NYC DOE schools. Defendants UFT, CSA, and DC 37 are labor organizations through which certain named Plaintiffs are covered by collective bargaining agreements (“CBAs“) with the NYC DOE.
For the second time in this action, Plaintiffs seek a preliminary injunction to enjoin and restrain Defendant NYC DOE from “unilaterally terminating the Plaintiffs without due process.” (ECF No. 76-13, Pls. Mem., P. 2.) Defendants UFT and CSA support Plaintiffs’ motion. (ECF No. 77.)1
BACKGROUND
The Court incorporates by reference in its entirety the factual background, procedural background, and evidentiary record described in and submitted in relation to the Court‘s November 24, 2021, Memorandum and Order (“Order“). (ECF No. 33.) The November 24, 2021, the Order denied the Plaintiffs’ November 17, 2021, motion for preliminary injunction and temporary restraining order (“First Motion for Preliminary Injunction“) which sought to enjoin the NYC DOE from implementing procedures to seek termination of employees who failed to obtain a first dose of the vaccine, apply for a religious or medical exemption, or extend their leave without pay (“LWOP“) status while retaining health benefits. (ECF No. 33, Nov. 24, 2021, M&O.)2
In the Court‘s November 24, 2021, Order, the Court noted that the effects and devastating impacts of the novel coronavirus, COVID-19, particularly on the unvaccinated, were well known. Since the date of that Order, the rapid rise of new highly transmissible variants of COVID-19 once again plunged the City of New York and the entire country into further periods of uncertainty and risk of serious illness or death for the unvaccinated. From December 2021 to January 2022, the Omicron variant descended on New York, bringing with it heightened levels of transmissibility and illness from COVID-19.3
Plaintiffs filed an Amended Complaint on January 10, 2022, naming additional parties. (ECF No. 47, Am. Compl.) On January 31, 2022, the NYC DOE notified employees who had failed to receive a COVID-19 vaccine and also failed to either (1) apply for and receive a medical or religious accommodation, or (2) extend their Leave Without Pay (“LWOP“) status and continued medical benefits until September 2022, that their employment would terminate on February 11, 2022. (See ECF No. 76-7, Pls. Ex. A, Termination Notices.) These termination notices stated in relevant part:
You have previously received notice regarding your failure to comply with the New York City Health Commissioner‘s Order requiring vaccination of all New York City Department of Education staff. Compliance with that Order is a condition of employment. Since you have not complied with the Order and have not chosen to extend your leave without pay, despite notice and an opportunity to do so, your employment with the New
York City Department of Education is terminated, effective February 11, 2022. Please note that your health insurance coverage through the City will also cease upon termination....Information about COBRA will be mailed to you separately at the address on file in NYCAPS....If you believe you are receiving this notification in error, please email LWOPquestions@schools.nyc.gov no later than February 2, 2022.
(See, e.g., ECF No. 76-7, Pls. Ex. A, p. 1.) Of the ninety-three Plaintiffs, forty-three4 received termination notices and face termination from their employment at the NYC DOE, effective on February 11, 2022. (ECF No. 76-1, Graff Aff., n.1.)5
On February 4, 2022, four days after the NYC DOE termination notices were received-and 164 days after the Vaccination Mandate was first issued on August 24, 2021-Plaintiffs filed a pre-motion conference request, seeking leave to file an emergency application for preliminary injunction and temporary restraining Order against the NYC DOE‘s termination of noncompliant NYC DOE employees. (ECF No. 72, Pls. Pre-Motion Req.) On that same date, the Court deferred a ruling on the Plaintiffs’ request for a pre-motion conference, and ordered all Defendants to respond to the Plaintiffs’ pre-motion conference request on an expedited basis. (Dkt. Order, Feb. 4, 2022.) Defendants UFT and CSA filed a response in support of Plaintiffs’ pre-motion conference request, and stated their own intention to seek injunctive relief against the NYC DOE. (ECF No. 73.) Defendants NYC DOE (ECF No. 74) and Defendants Martin F. Scheinman and the Scheinman Arbitration and Mediation Services entities (ECF No. 75) filed letters in opposition to Plaintiffs’ pre-motion conference request.
The Court granted the Plaintiffs’ pre-motion conference request on February 7, 2022, and held a pre-motion conference on that same date. (Dkt. Order, Feb. 7, 2022; Min. Entry Feb. 7, 2022.) At the pre-motion conference, the Court ordered expedited briefing as to Plaintiffs’ emergency application for injunctive relief. (Min. Entry Feb. 7, 2022.) Discussions during the pre-motion conference included Defendant UFT‘s lack of representative or associational standing to seek an injunction together with the Plaintiffs’ against whom the UFT is adverse. Defendants UFT and CSA represented to the Court that they would submit only a letter stating support of the Plaintiffs’ emergency application for injunctive relief. (See id.) Defendants UFT
Plaintiffs filed a motion for preliminary injunction and temporary restraining order on February 8, 2022 (ECF No. 76), along with an affirmation from Plaintiffs’ counsel Austin Graff, Esq. (ECF No. 76-1), supporting declarations from five of the forty-three Plaintiffs facing termination on February 11, 2022 (ECF Nos. 76-2-6), supporting exhibits (ECF No. 76-7-12), and an accompanying memorandum of law. (ECF No. 76-13.) The UFT filed a five-page letter in support of Plaintiffs’ emergency application. (ECF No. 77.) On February 9, 2022, Defendant NYC DOE filed a memorandum in opposition to Plaintiffs’ motion for preliminary injunction and temporary restraining Order (ECF No. 79, Def. NYC DOE Mem.), Appendix A providing copies of two relevant New York State Supreme Court Cases (ECF No. 79-2, Appx. A.), and Appendix B, providing the Affirmation of Dr. Michelle E. Morse, M.D., M.P.H., the Chief Medical Officer of the Department of Health and Mental Hygiene of the City of New York. (ECF No. 79-2, Appx. B.) On February 10, 2022, Plaintiffs filed a reply memorandum of law in further support of their motion for preliminary injunction.7 (ECF No. 82, Pls. Reply Mem.)
LEGAL STANDARD
The party seeking a preliminary injunction must establish “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (internal citations omitted).
Here, Plaintiffs seek both a prohibitory and mandatory injunction. (ECF No. 76-13, Pls. Mem. pp. 2-4.) The traditional preliminary injunction analysis is complicated by three distinctions given the nature of the mandatory injunctive relief Plaintiffs seek. First, because Plaintiffs seek a mandatory injunction against a government action taken in the public interest, they must show both irreparable harm and a “clear” or “substantial” likelihood of success on the merits. See Tom Doherty Assocs. v. Saban Entm‘t, Inc., 60 F.3d 27, *33-34 (2d Cir. 1995) (plaintiffs seeking a mandatory injunction must meet higher standard and must show a “clear” or “substantial” likelihood of success on the merits); Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 573-74 (2d Cir. 2002) (“In order to merit preliminary injunctive relief against ‘government action taken in the public interest pursuant to a statutory or regulatory scheme,’ a plaintiff
Second, Plaintiffs allege constitutional violations, and “[i]n the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm.” Maniscalco, 2021 WL 4344267, at *2 (citing Ferreyra v. Decker, 456 F. Supp. 3d 538, 549 (S.D.N.Y. 2020); see also Statharos v. New York City Taxi & Limousine Comm‘n, 198 F.3d 317, 322 (2d Cir. 1999)). As Plaintiffs allege that their procedural due process rights have been violated, “no further showing of irreparable injury is necessary,” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984), and the Court will focus its analysis on the other factors for establishing an entitlement to injunctive relief.
Third and finally, parties seeking mandatory injunctive relief are required to meet the higher standard where, as here, (1) the injunctive relief sought would alter, rather than maintain, the status quo or (2) the injunction would grant the movant substantially all the relief sought, which relief could not be undone even if defendants prevail on the merits. Tom Doherty Assocs., 60 F.3d at *33-34. Here, Plaintiffs are seeking, among other things, to enjoin the NYC DOE from terminating their employment without due process, and to be restored employment with the NYC DOE, after having been placed on LWOP several months ago on October 4, 2021, with notice of their eventual termination for failure to comply with the Vaccination Mandate. Plaintiffs also seek to enjoin the termination of their medical benefits on February 11, 2022, despite their ability by November 30, 2021, to have continued their LWOP status and medical benefits through September 2022. Accordingly, Plaintiffs must meet the higher standard for a mandatory injunction, and must show a “clear” or “substantial” likelihood of success on the merits. See Tom Doherty Assocs., 60 F.3d 27; Doninger v. Niehoff, 527 F.3d 41, *47 (2d Cir. 2008).
DISCUSSION
Plaintiffs’ renewed motion for injunctive relief demands that the Court revisit many of the same issues already decided in the Court‘s November 24, 2021, Memorandum and Order, with one notable exception. In its opposition to Plaintiffs’ First Motion for Preliminary Injunction, the NYC DOE argued in its papers and at the November 23, 2021, show cause hearing that employees separated under the terms of the Vaccination Mandate, and under the express terms of the Impact Arbitration Award, are not being “disciplined,” but are being terminated based on their failure to satisfy a condition of employment. At the November 23, 2021, show cause hearing, the parties requested, and the Court granted leave for, supplemental briefing as to whether noncompliant NYC DOE employees facing separation were being “disciplined” or subject to a legitimate condition of employment, and the Court did not expressly reach that issue in its November 24, 2021, Order. The Court reaches that specific issue here, as will be discussed infra.8
A. Likelihood of Success on the Merits
Plaintiffs again have failed to establish a “clear” or “substantial” likelihood of success on the merits as to any of their claims. In their Amended Complaint, Plaintiffs seek an assortment of relief, including declaratory judgment as to the NYC DOE‘s allegedly violative suspension of Plaintiffs without pay and due process; declaratory judgment as to the allegedly illegal Arbitration Awards and agreements between the Defendant unions and the NYC DOE; declaratory judgment as to the allegedly coercive and void NYC DOE Release Forms signed by certain Plaintiffs;
1. Procedural Due Process
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. See O‘Connor v. Pierson, 426 F.3d 187, 195-96 (2d Cir. 2005); see also Ciambriello v. Cty. of Nassau, 292 F.3d 307, 313 (2d Cir. 2002). Having found that Plaintiffs have a protected property interest in their continued employment, the Court next considers whether the available processes that Plaintiffs may invoke upon deprivation of their property interests and, specifically, upon termination, are constitutionally adequate.
The Court must determine not whether state procedural law was correctly followed or applied, but rather, whether the processes provided by state procedures, contract rights, or other available processes satisfy constitutional requirements. To determine whether available processes are adequate, the Court looks to “[f]ederal constitutional standards rather than state statutes [to] define the requirements of procedural due process.” Robison v. Via, 821 F.2d 913, 923 (2d Cir. 1987) (emphasis added); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (“[O]nce it is determined that the Due Process Clause applies, the question remains what process is due. The answer to that question is not to be found in the [state] statute.“) (internal citation and quotation marks omitted); Russell v. Coughlin, 910 F.2d 75, 78 n.1 (2d Cir. 1990) (“[T]he fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse
As the Court in its November 24, 2021, Order previously determined, the Court reaffirms here for the avoidance of doubt that the pre- and post-deprivation process Plaintiffs have been afforded upon the deprivation of Plaintiffs’ continued employment and pay were, and remain, constitutionally adequate. (ECF No. 33, Nov. 24, 2021, M&O, pp. 17-22) (“Plaintiffs had, and continue to have, multiple avenues available to them to challenge and address the actions taken against them as a result of the Vaccination Mandate through the procedures established in the CBAs governing the terms of Plaintiffs’ employment, including the Impact Arbitration Award9 procedures, which provide grievance and arbitration procedures, and undisturbed, well-established [Article 78] state court procedures.“).
The Court, in addition to a review of the record forming the bases of its prior November 24, 2021, Order, reaches this same conclusion, after considering Plaintiffs’ proffer of additional evidence in support of their renewed motion for injunctive relief. Plaintiffs have not submitted any new or supplemental evidence in support of their instant motion that compels the Court to conclude that any of the adequate and available processes have been withheld from the Plaintiffs. In support of their second motion for preliminary injunction, Plaintiffs have submitted five declarations from specific Plaintiffs: James Hoffman (ECF No. 76-2), Nathalie Charles (ECF No. 76-3), Serena Mendez (ECF No. 76-4), Tara Palladino (ECF No. 76-5), and Janelle Lotito (ECF No. 76-6). Plaintiff Lotito, as noted previously, signed the NYC DOE Release Form associated with extending her LWOP status until September 2022, and thus will not be terminated on February 11, 2022. (ECF No. 47, Am. Compl., ¶ 315; ECF No. 76-6, Lotito Decl.) None of the other declarant-Plaintiffs state whether they availed themselves of any of the pre- or post- deprivation processes, and none of the declarant-Plaintiffs articulated their individual religious, medical, or other bases for refusing to receive a COVID-19 vaccination. Mr. Graff, counsel to Plaintiffs, did not include in his signed Affidavit any information regarding which of the ninety-three Plaintiffs, or the subset of forty-three Plaintiff members who allegedly received termination notices,10 had availed themselves of any processes.
The pre- and post-deprivation processes available to Plaintiffs, as described in the Court‘s November 24, 2021, Order, were made known to Plaintiffs well in advance of any action by the NYC DOE, and were and are available through their unions and through established state procedures. First, Plaintiffs received advanced notice of the Vaccination Mandate, their ability to seek religious and medical exemptions and appeals, their placement on LWOP for noncompliance with the Vaccination Mandate, their options and opportunities to respond, and of the NYC DOE‘s intention to seek termination for continued noncompliance. The widely publicized Vaccination Mandate was implemented on August 24, 2021. Plaintiff-UFT members had notice of the LWOP and potential separation since September 10, 2021; CSA member employees had notice as of September 15, 2021; and DC 37 member employees had notice as of October 3, 2021. (See ECF No. 79, Def. NYC DOE Opp. Mem. pp. 6-7, 28.) Plaintiffs were further notified on October 2, 2021, that noncompliance with the Vaccination Mandate would result in placement on LWOP as of October 4, 2021, and that the NYC DOE would seek to separate them if they did not comply with the Vaccination Mandate or extend their LWOP status. (See ECF No. 1-1, Ex. A, Oct. 2, 2021, Email from NYC DOE.)
Second, the pre- and post-deprivation proceedings articulated in the Awards were incorporated into the Plaintiffs’ collective bargaining agreements. (See, e.g., ECF No. 20, Def. UFT Opp. Mem. at p. 4.) The UFT represented that it advised members inquiring about grievances that procedures regarding unvaccinated employees were governed by the binding Impact Arbitration Award which altered their CBA, and which was circulated to UFT members “along with plain-language guidance of the Award‘s terms[.]” (ECF No. 20, Def. UFT Opp. Mem. at p. 13.) Pre-deprivation processes “need not be elaborate[,]” and the Constitution mandates only that such process include, at a minimum, notice and the opportunity to respond. See O‘Connor v. Pierson, 426 F.3d 187, 198 (2d Cir. 2005) (citing Loudermill, 470 U.S. at 545-546). The procedures outlined in CBAs are generally found to constitute adequate post-deprivation process. See O‘Connor v. Pierson, 426 F.3d 187, 198 (2d Cir. 2005) (noting that “CBA-mandated grievance procedures are routinely (though not always) held to provide adequate post-deprivation process.“) (internal citations omitted); see also Narumanchi v. Bd. of Trustees of Connecticut State Univ., 850 F.2d 70, 72 (2d Cir. 1988) (noting that guaranteed procedural rights could be satisfied by the pre-deprivation notice and hearing rights provided in the collective bargaining agreement grievance procedures) (citing Costello v. Town of Fairfield, 811 F.2d 782, 786 (2d Cir. 1987) (Van Graafeiland, J., concurring) (finding post-deprivation arbitration of grievances under collective bargaining agreement satisfied due process).
processes, and noting specifically that “[i]t is well-established that the Article 78 proceeding ‘constitutes a wholly adequate post-deprivation hearing for due process purposes.‘“) (citing Locurto v. Safir, 264 F.3d 154, 175 (2d Cir. 2001) (holding that terminated plaintiffs failed to allege a claim for violation of due process, and noting that an Article 78 proceeding constitutes a wholly adequate post-deprivation hearing for due process purposes.)).
Having again determined that the Plaintiffs were afforded constitutionally adequate pre- and post-deprivation due process, the Court next considers whether the vaccine requirement is a condition of employment and examines any corresponding due process requirements.
2. Vaccine Requirement as a Condition of Employment
The Court finds that the Vaccination Mandate is a lawful condition of employment and, thus, upon termination, Plaintiffs have been provided constitutionally adequate process under their applicable CBAs as affected by the relevant Arbitration Awards or agreements and all relevant state statutes.
Plaintiffs do not challenge the lawfulness or validity of the Vaccination Mandate. In fact, none of the relevant parties dispute that the Vaccination Mandate is lawful and requires all NYC DOE employees to be vaccinated, or to receive an exemption or accommodation. Instead, Plaintiffs assert that the termination of employees by the NYC DOE pursuant to the Vaccination Mandate is unlawful because: (1) the Commissioner of the New York City Department of Health and Mental Hygiene has no statutory or administrative authority to impose a new condition of employment upon NYC DOE employees; (2)
The Court is not convinced by Plaintiffs’ or Defendant unions arguments that the NYC DOE acted without statutory or administrative authority. Plaintiffs specifically argue that a condition of employment must comply with the
No principal, supervisor, director, or teacher shall be appointed to the teaching force of a city who does not possess qualifications required under this chapter and under the regulations prescribed by the commissioner of education for the persons employed in such positions in the schools of the cities of the state, but a board of education may prescribe additional or higher qualifications for the persons employed in any of such positions.
The Court also finds unavailing Plaintiffs’ further argument that Defendant NYC DOE created a condition of employment in contravention of
The COH Order establishing the Vaccination Mandate has established a lawful, enforceable condition of employment (named differently, a qualification for employment or eligibility for employment, etc.) which all NYC DOE employees must satisfy in order to remain employed by the NYC DOE.13 As the NYC DOE has accurately asserted, the NYC DOE has an obligation to maintain a safe workplace. See
Recent case law from this Circuit and in the State of New York supports a finding that vaccination is a lawful condition of employment. Though not specific to the education context, the Second Circuit has held that “[v]accination is a condition of employment in the healthcare field.” We The Patriots USA, Inc. v. Hochul, Nos. 21-2179, 21-2566, 2021 WL 5121983, at *18 (2d Cir. 2021). Relatedly, as this Court recently found in Garland, due to the specific nature of plaintiff-F.D.N.Y. firefighters’ and EMTs’ public facing jobs, vaccination is a lawful qualification for employment for F.D.N.Y. firefighters. See Garland v. New York City Fire Dep‘t, No. 21-cv-6586(KAM)(CLP), 2021 WL 5771687, at *6 (E.D.N.Y. Dec. 6, 2021) (in which the vaccination mandate at issue was created by Order of the Commissioner of the New York City Department of Health and Mental Hygiene on October 20, 2021, requiring all City employees to receive one dose of any COVID-19 vaccine by a date certain).
Additionally, in three recent and separate New York Supreme Court cases, the New York Supreme Court issued instructive decisions regarding Article 78 proceedings filed by tenured NYC DOE teachers who failed to comply with the Vaccination Mandate and challenged their placement on LWOP status. See O‘Reilly v. Bd. of Educ. of the City School Dist. of the City of New York, No. 161040/2021, N.Y. Slip. Op. 30173(U), 2022 WL 180957, at *1 (N.Y. Sup. Ct. Jan. 20, 2022); Lanzer v. Bd. of Educ., et al., Index No. 160017/2021 (N.Y. Sup., N.Y. Cnty); Romero v. Bd. of Educ., et al., Index No. 160353/2021 (N.Y. Sup., N.Y. Cnty). In O‘Reilly, which involved a tenured teacher-petitioner, the New York Supreme Court held that the COH Order established vaccination against COVID-19 as a lawful “condition of employment” for NYC DOE employees. See O‘Reilly, 2022 WL 180957, at *2 (finding that NYC DOE‘s employment action of placing teachers who did not comply with the Vaccination Mandate on LWOP status was not discipline under New York Education Law and was “merely a response to petitioner‘s refusal to comply with a condition of employment.“). The New York Supreme Court accordingly held that petitioner was not entitled to the process required by
Plaintiffs advance a series of baseless arguments related to the NYC DOE‘s Vaccination Mandate as a condition of employment that do not support a finding that Plaintiffs are likely to succeed on the merits. Plaintiffs rely on the Lotito Declaration and an accompanying exhibit in support of their contention that “the NYCDOE‘s actions are inconsistent” with the NYC DOE‘s position that the Vaccination Mandate creates a legitimate condition of employment. Plaintiff-declarant Lotito asserts that because she was allowed to enter her son‘s school despite being unvaccinated, though she was asked to complete a Health Questionnaire as part of her visits, the NYC DOE‘s argument that she is unfit for employment must fail. (ECF No. 76-6, Lotito Decl.; ECF No. 76-8, Ex. B, Health Screening Questionnaire). This argument is inapplicable to the question of whether the NYC DOE has created a lawful condition of employment. The conditions on visitors within the NYC DOE system do not impact the legitimacy of conditions imposed on NYC DOE employees.
Relatedly, Plaintiffs in their memorandum of law argue that they are physically and/or mentally capable of performing their duties, and if “they were to submit to medical examinations, many of the Plaintiffs would be able to show that they have natural immunity from the COVID-19 virus.” (ECF No. 76-13, p. 12.) In support of
The NYC DOE has not asserted that Plaintiffs are unfit for employment. Rather, Defendant NYC DOE has submitted evidence that convincingly supports the vaccine requirement as a condition of employment, and undercuts Plaintiffs’ arguments based on antibody tests, through the Declaration of Dr. Michelle E. Morse, M.D., M.P.H. (See ECF No. 79-2, Appx. B, Morse Aff., ¶¶ 18, 19 (noting that vaccines are the most effective means of reducing the spread of COVID-19, that the level and duration of immune protection that results from a prior COVID-19 infection remains uncertain, and that the CDC still recommends vaccinations for people who have had prior COVID-19 infections)).
Plaintiffs also argue that because the NYC DOE‘s contractors are advertising for jobs that do not include vaccination as a qualification, the NYC DOE cannot argue that its employees must be vaccinated. (ECF No. 76-13, Pls. Mem., p. 10.) Plaintiffs submit an “Indeed” job posting for a “speech language pathologist and CFs” position (ECF No. 76-11, Ex. E), which, according to the posting, is for a position with the “Perfect Playground,” a part of the Stepping Stones Group. (Id.) The posting provides that the company seeks employees for “school assignments[.]” (Id.) This evidence does not establish that the Stepping Stones Group is a NYC DOE contractor or that the NYC DOE will not require vaccination as a qualification for placement at an NYC DOE school. Even assuming this limited evidence relates to an NYC DOE position, it does not support a finding that the NYC DOE‘s vaccination requirement is not a valid condition of employment. Plaintiffs’ arguments are not substantiated by credible or material evidence, nor do they have any bearing on whether Plaintiffs were provided adequate due process or whether the NYC DOE has implemented a lawful condition of employment. Consequently, Plaintiffs have not shown a likelihood of success on the merits.
Pursuant to the Commissioner of Health‘s Order and NYC DOE‘s implementation, the Plaintiffs have been provided constitutionally adequate notice and opportunity to challenge the NYC DOE‘s separation of unvaccinated employees, absent an exemption or accommodation, from their employment in the NYC DOE‘s schools. The termination of NYC DOE employees who failed to comply with the COVID-19 vaccination condition of employment is not disciplinary. Rather, Plaintiffs’ separation is cause of their failure to avail themselves of existing processes or comply with a lawful job condition.
3. Corresponding Due Process
Accordingly, the Court need not consider whether
Based on the foregoing, because the Court finds that receiving a vaccination against COVID-19 is a condition of employment for NYC DOE employees, the NYC DOE need not pursue the disciplinary procedures contained in
B. Irreparable Harm
Though, as referenced supra, Plaintiffs need not make any further showing of irreparable harm once constitutional deprivations have been alleged, the Court notes that the harms alleged by Plaintiffs directly resulting from their noncompliance with the Vaccination Mandate are not irreparable. At their core, Plaintiffs’ articulated harms associated with the instant motion for injunctive relief are: loss of employment and the resulting loss of medical benefits. As discussed in the Court‘s previous decision, and again below, the Second Circuit has held that these pecuniary harms are neither irreparable nor sufficient to justify the presently requested injunctive relief.
In support of their motion for preliminary injunction, Plaintiffs have submitted five declarations from Plaintiffs, including the Declaration of Janelle Lotito. (ECF No. 76-6). (See also ECF No. 76-2, Hoffman Decl., ECF No. 76-3, Charles Decl., ECF No. 76-4, Mendez Decl., and ECF
This Court does not dispute that loss of income and/or loss of medical benefits are serious burdens. The loss of one‘s wages and medical insurance, particularly for those with financial commitments and dependents, are serious hardships. The standard for equitable relief, however, demands a demonstration of an irreparable harm, harm for which available legal remedies and monetary damages would be inadequate. In the Second Circuit, “[i]rreparable injury is one that cannot be redressed through a monetary award. Where money damages are adequate compensation a preliminary injunction should not issue.” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990); see also Moore v. Consol. Edison Co. of New York, 409 F.3d 506, 510-11 (2d Cir. 2005) (“Where there is an adequate remedy at law, such as an award of money damages, injunctions are unavailable except in extraordinary circumstances.“) (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992); Metro. Opera Ass‘n, Inc. v. Local 100, Hotel Employees & Rest. Employees Int‘l Union, 239 F.3d 172, 177 (2d Cir. 2001)). The Supreme Court has also held that “the temporary loss of income, []does not usually constitute irreparable injury ... The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974). Here, should Plaintiffs prevail, monetary relief will be available to compensate their associated pecuniary losses.
Plaintiffs cite two cases for the proposition that their loss of medical benefits can constitute irreparable harm: Communications Workers of Am., Dist. One, AFL-CIO v. NYNEX Corp., 898 F.2d 887 (2d Cir. 1990) and Whelan v. Colgan, 602 F.2d 1060 (2d Cir. 1979). Both these cases are distinguishable from the instant case: in Whelan, a case that pre-dates the enactment of COBRA, the Second Circuit affirmed the granting of a preliminary injunction where plaintiffs, striking workers, were likely to succeed on the merits, and where “the threatened termination of benefits such as medical coverage for workers and their families obviously raised the spectre of irreparable injury.” Whelan, 602 F.2d at 1062. NYNEX involved the denial of COBRA benefits as required under federal law. NYNEX Corp., 898 F.2d 887. In NYNEX, the defendant-employer initially informed its employees that it intended to terminate medical benefits, which they could replace under COBRA. Defendant-employer then obstructed the employees’ ability to secure COBRA benefits, which the district court considered an absolute termination of benefits. The Court of Appeals affirmed the district court‘s grant of a preliminary injunction ordering the defendant to allow for COBRA benefits. See NYNEX, 898 F.2d at 891-92. Here, in contrast, nothing in the record indicates that Plaintiffs will not retain their Congressionally-mandated ability to secure medical coverage under COBRA. (See ECF No. 76-7, Pls. Ex. A, Termination Notices p. 1 (“Information about COBRA
More recently and relatedly, the Southern District of New York in Kane v. de Blasio, No. 21-cv-7863 (VEC), 2021 WL 5909134 (S.D.N.Y. Dec. 14, 2021), denied injunctive relief to NYC DOE teachers and administrators, noting that the teachers alleged that they were faced with either a vaccination or the possibility of “various penalties including the loss of health insurance and other benefits[.]” Id. at *4. The Court determined that the only alleged harms were economic and could be remedied by money damages and, therefore Plaintiffs had not demonstrated irreparable harm. Id.15 Here too, injunctive relief is not warranted on the basis of Plaintiffs’ alleged, compensable harms.
Plaintiffs argue that their harms are beyond monetary, and that the very choice they face between vaccination and termination is in itself an irreparable harm. Plaintiffs assert that the Second Circuit in Kane v. De Blasio, 19 F.4th 152 (2d Cir. 2021), by citing to the Fifth Circuit case BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021) in a footnote, “raises the specter that in this Circuit the choice between a job and a jab is irreparable harm.” (ECF No. 76-13, Pls. Mem., pp. 4-5) (citing Kane, 19 F.4th at 170, n. 18 (“But see BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021) (finding irreparable harm where ‘reluctant individual recipients [were] put to a choice between their job(s) and their jab(s)‘)“).)
This Court does not consider Plaintiffs’ reading to be an accurate interpretation of the Second Circuit‘s footnote in Kane, in which the Court of Appeals first clearly stated that it did “not cast doubt on the well-established principle that ‘loss of employment “does not usually constitute irreparable injury.“‘” Kane, 19 F.4th at 170, n. 18 (internal citations omitted). In the Second Circuit, the well-established principle remains that adverse employment consequences do not usually constitute irreparable harm. See We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 294-95 (2d Cir.), opinion clarified, 17 F.4th 368 (2d Cir. 2021) (“It is well settled [...] that adverse employment consequences are not the type of harm that usually warrants injunctive relief because economic harm resulting from employment actions is typically compensable with money damages.“) (citing Sampson v. Murray, 415 U.S. 61, 91-92 (1974) (“[L]oss of income and ... the claim that her reputation would be damaged ... falls far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction[.]“); Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988) (“Since reinstatement and money damages could make appellees whole for any loss suffered during this period, their injury is plainly reparable and appellees have not demonstrated the type of harm entitling them to injunctive relief.“)).
Here, Plaintiffs’ economic harms can be remedied with monetary damages and/or reinstatement if Plaintiffs prevail on the merits. Further, the termination of Plaintiffs’ medical benefits, to which they are no longer entitled once they cease to be employees of the NYC DOE, can be continued through COBRA. Accordingly, Plaintiffs have failed to demonstrate that they will suffer irreparable harm absent injunctive relief.
C. Balance of the Equities and D. The Public Interest
The Court finds that both the balance of the equities and the public interest weigh against injunctive relief. Plaintiffs seek an injunction barring “the NYC DOE from unilaterally terminating the Plaintiffs without due process.” (ECF No. 76-13, at p. 2.) The role of the Court, however, is to “balance the competing claims of injury on each party of either granting or withholding the requested relief, paying particular regard to the public consequences.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). On balance, the equities at stake and 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, and again denying a temporary restraining order and preliminary injunction.
The Vaccination Mandate and all of its consequences are plainly oriented around one goal: to protect the affected population from the adverse impact of COVID-19. In this instance, the relevant population includes NYC DOE staff and students. It “cannot be disputed that the State has a public policy in favor of protecting children[.]” City Sch. Dist. Of City of New York v. McGraham, 17 N.Y.3d 917, 919-920 (2011). Many of the more than one million students who learn within the NYC DOE school system network are still too young to be vaccinated, to say nothing of particularly vulnerable students who are immunocompromised, or have family members who are.
The Court in its November 24, 2021, Order, cited Maniscalco v. New York City Dep‘t of Educ., No. 21-CV-5055 (BMC), 2021 WL 4344267, at *4 (E.D.N.Y. Sept. 23, 2021), in which Judge Cogan of this District noted, “[s]ince its emergence, COVID-19 has killed over 4.5 million people worldwide, with over 670,000 of those deaths taking place in the United States,” and vaccination is “one of the most highly regarded” tools available to “reduce viral transmission.” Now, as of the date of the filing of this Memorandum and Order, COVID-19 has killed more than 5.7 million
As Dr. Michelle E. Morse provided in her affidavit, “from a public safety perspective, vaccination provides a more certain and verifiable record of immunity than that afforded by prior COVID-19 infection,” and consequently, “vaccination is a major public health imperative.” (ECF No. 79-2, Appx. B, ¶¶ 20-21.) “In particular, vaccination of individuals providing City services and working in City facilities will save lives, protect public health, and promote public safety.” (Id. at ¶ 21.) Available scientific and medical data supports the use of vaccination as a lifesaving public policy measure, as data from the “Centers for Disease Control and Prevention shows that people who are unvaccinated are at a much greater risk than those who are fully vaccinated to die from Covid-19.”18
All available scientific and medical information is for the government and its agencies-and not for this Court-to formulate into the policies the City and State consider to be in the best interest of the public health and safety. The Court‘s role is limited to assessing claims of irreparable harm, the likelihood of success on the merits, and balancing the competing claims of injury and the public consequences of granting relief. In this case, for the second time, the Court considers that the equities and the public interest clearly disfavor injunctive relief.
CONCLUSION
For the reasons set forth above, Plaintiffs’ Motion for Preliminary Injunction and Temporary Restraining Order, accompanied by the Defendant unions’ “supporting” letter, is DENIED.
SO ORDERED.
Dated: February 11, 2022
Brooklyn, New York
/s/
Hon. Kiyo A. Matsumoto
United States District Judge