Mumin v. The City of New YorkMumin v. The City of New York
OPINION AND ORDER
JENNIFER L. ROCHON, United States District Judge:
Ayana F. Mumin (Mumin or Plaintiff) brings this suit for violations of Title VII of the Civil Rights Act of 1964,
BACKGROUND1
I. Factual Background
Plaintiff is a former employee of the New York City Department of Corrections.
In August 2021, while Plaintiff was still on medical leave, the City Defendants announced a policy whereby City employees, including DOC employees, had to obtain the COVID-19 vaccine or undergo weekly testing. SAC ¶ 77. In October 2021, while Plaintiff was still on medical leave, the City announced that it would require all City employees, including those working for the DOC, to be vaccinated against COVID-19, and the DOC announced that it would review and determine requests from employees who sought accommodations based on their medical condition or religion. SAC ¶¶ 78-79; Dkt. 54-1; Dkt. 54-3. To obtain such an accommodation, employees were required to complete a form entitled Correction Department of the City of New York — Request for a Reasonable Accommodation (the Accommodation Form). SAC ¶¶ 79-80.
On October 22, 2021, while still on medical leave, Plaintiff submitted the Accommodation Form, requesting an accommodation or exemption from the mandate based on her Islamic religion, which prohibits her from being vaccinated against all conditions, ailments[,] and impairments, including the corona virus. SAC ¶ 81. On November 8, 2021, then-DOC Commissioner Vincent Schiraldi issued a teletype order (the Teletype Order) to all DOC employees, which set forth the COVID-19 vaccine mandate and the process for requesting a reasonable accommodation, and stated in part that the only allowable accommodation from the Vaccine Mandate that will not cause undue hardship and/or disruption to the department is weekly testing and submission of negative PCR results. SAC ¶¶ 87-89 (further capitalization and emphasis omitted); Dkt. 54-3. On November 9, 2021, Plaintiff returned to work. SAC ¶ 101. On November 10, 2021, the City Defendants informed Plaintiff that the DOC had reviewed her request and could not accommodate it, stating that providing Plaintiff with any exemption would cause an undue hardship to the Department as it presents a direct threat to members of service, the public and
The facilities maintained by the [DOC] are often confined spaces with narrow passages that do not always allow for social distancing. The layout and the duration of time people spend near each other in the facilities allows for the easy transmission of COVID-19. Due to this, many Members of Service have contracted COVID-19 during the pandemic, and some Members of Service and detainees have died due to the virus. Furthermore, the Department interacts with visiting members of the public on a regular basis. Since the public frequently visits detainees and interacts with Members of Service, they may introduce COVID-19 into the facilities where it can be transmitted to Members of Service and to detainees within our custody.
Dkt. 54-2 at 1. It also cited the risk of asymptomatic transmission and the concern that masks and weekly testing may be insufficient to control the spread of COVID-19 in the Department. Id. It further noted that:
The Department is currently operating with a severe shortage of staff at most jail facilities. At various points over the last few months, more than a quarter of uniformed Members of Service have been out sick or have not appeared for work. Due to these widespread staffing shortages, the Department has had to redeploy uniformed Members of Service at non-jail Commands to the jail facilities to fill the posts not manned due to the absences. Therefore, it is an undue hardship to exempt Members of Service from the vaccine because many Members of Service have been out sick recently and the Department has had difficulty fully staffing the facilities. The Department has a great need to make sure that Members of Service are healthy and manning their posts.
Dkt. 54-2 at 1-2.
On November 16, 2021, Plaintiff appealed the denial of her request for an accommodation and requested to speak and meet with someone in the DOCs Equal Employment Opportunity (EEO) office about her request and the appeal. SAC ¶¶ 125-126. After receiving an email acknowledging receipt of her appeal, on December 19, 2021, Plaintiff received an email from noreply@salesforce.com2 on behalf of Vax Appeal (DCAS) informing her that the City of New York Reasonable Accommodation Appeals Panel has decided to deny the appeal of Ayana Mumin and that the decision classification for the appeal was Does Not Meet Criteria. SAC ¶¶ 130, 135; Dkt. 67-1. The email also stated that it had been [s]ent from the Department of Citywide Administrative Services. Dkt. 67-1.
Plaintiff did not receive the COVID-19 vaccination or submit proof of vaccination by December 22, 2021, as required. SAC ¶¶ 137, 139. From November 9, 2021, until she was placed on leave on January 2, 2022, Plaintiff underwent weekly testing and submitted negative PCR test results. SAC ¶¶ 102-103. The December 19, 2021 email advised Plaintiff that she would be placed on leave without pay if she did not comply with the vaccine mandate and she was thereafter placed on leave without pay
Plaintiff alleges that the DOC had a policy and practice of denying applications that sought the weekly-testing accommodation if the requests were made on religious grounds, and only granted medical requests for accommodation or exemptions. SAC ¶ 141. According to Plaintiff, the DOC granted every request for medical accommodation, including for DOC employees who had direct contact with the inmate population and public. SAC ¶¶ 152, 154, 157. In contrast, the DOC refused to grant any request for religious accommodations. SAC ¶ 155. She alleges that Molina was aware of that policy and practice and continued it when he became DOC Commissioner, directing Salesforce and DOC employees to adhere to it. SAC ¶¶ 141, 143.
Plaintiff identifies another female captain at the DOC, Captain Janelle Murray, whose request for a religious accommodation was also denied. SAC ¶ 151. Plaintiff alleges that certain male DOC employees were permitted to continue working without being vaccinated, and identifies three such employees whose duties involved daily direct contact with the incarcerated population and the public. SAC ¶¶ 159-161. Two of those individuals, identified as Correction Officer Gilbert Frederique and Correction Officer Jeffrey, worked in the complex on Rikers Island where Plaintiff worked before being moved to the HMD. SAC ¶ 160, 163-164. Plaintiff alleges that Molina was aware of the practice of permitting male employees to remain unvaccinated and employed, while terminating the employment of Plaintiff and other unvaccinated female DOC employees. SAC ¶ 167.
The City Defendants eventually rescinded the vaccine mandate, effective February 10, 2023. SAC ¶ 177. In February 2023, the City Defendants announced that employees who had been terminated for failure to comply with the vaccine mandate could reapply for entry-level positions within City agencies, including the DOC, but they would have to start at the bottom of the employment ladder rather than return[ing] to [their] former position[s]. SAC ¶¶ 178-180.
II. Procedural History
On March 11, 2022, Plaintiff filed charges with the Equal Employment Opportunity Commission (EEOC), alleging that the City, the DOC, and Salesforce.com, Inc. subjected her to discriminatory treatment in the terms and conditions of her employment based on her religion, religious beliefs, and gender. SAC ¶ 10. The EEOC issued a Notice of Right to Sue with respect to the charges asserted against the City and the DOC. SAC ¶ 11.
Plaintiff subsequently filed her Complaint on May 11, 2023, alleging violations of Title VII against the City and the DOC; the NYSHRL and the NYCHRL against the City, the DOC, and Salesforce; as well as claims under
The City Defendants moved to dismiss the FAC in its entirety. Dkt. 27. During the Initial Pretrial Conference on January 16, 2024, Plaintiff indicated her intent to file a Second Amended Complaint; the Court permitted that amendment and accordingly denied the pending motion to dismiss the FAC without prejudice to refiling after Plaintiff filed her Second Amended Complaint. Dkt. 43 at 1-2. Defendant Salesforce was served on February 2, 2024. Dkt. 44. Plaintiff filed a Second Amended Complaint on February 15, 2024. See SAC.3
On March 14, 2024, the City Defendants moved to dismiss the SAC and submitted a declaration and three exhibits in support of that motion. Dkt. 53; Dkt. 54 (Bonaparte Decl.); Dkt. 55 (City Dfs. Br.). On May 7, 2024, Salesforce moved to dismiss Counts III to IV and IX to XV of the SAC and submitted a declaration and one exhibit in support of that motion. Dkt. 65; Dkt. 66 (Salesforce Br.); Dkt. 67 (Fornos Decl.). The parties completed briefing by July 19, 2024. See Dkt. 68 (Pl. City Opp.); Dkt. 73 (City Dfs. Reply); Dkt. 74 (Pl. Salesforce Opp.); Dkt. 78 (Salesforce Reply).
DISCUSSION
I. Motion to Dismiss Standard
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must allege more than a sheer possibility that a defendant has acted unlawfully and more than facts that are merely consistent with a defendants liability. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. McCrae v. Trans Union LLC, No. 23-cv-07971 (JLR), 2024 WL 1859965, at *1 (S.D.N.Y. Apr. 29, 2024) (some quotation marks omitted) (quoting Iqbal, 556 U.S. at 678).
[W]hen ruling on a defendants motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint, and draw[] all reasonable inferences in favor of the plaintiff. Greenberg v. Visiting Nurse Servs. in Westchester, Inc., No. 23-cv-04252 (KMK), 2024 WL 4252550, at *5 (S.D.N.Y. Sept. 19, 2024) (alterations in original) (first quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007); and then quoting Daniel v. T&M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014)). A complaint that offers only labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Further, if the plaintiff ha[s] not nudged [his] claims across the line from conceivable to plausible, [those claims] must be dismissed. Rizzo v. N.Y.C. Dep‘t of Sanitation, No. 23-cv-07190 (JMF), 2024 WL 3274455, at *2 (S.D.N.Y. July 2, 2024) (alterations in original) (quoting Twombly, 550 U.S. at 555, 570).
The Court will first address the City Defendants motion to dismiss and then address the motion filed by Salesforce.4
Title VII prohibits employers from discriminating against their employees with respect to compensation, terms, conditions, or privileges of employment based on protected classifications, including religion and gender.
While courts in this Circuit have historically treated Title VII and NYSHRL discrimination claims similarly, in 2019, the NYSHRL was amended to be closer to the standard of the NYCHRL. Chinchilla v. N.Y.C. Police Dep‘t, No. 23-cv-08986 (DEH), 2024 WL 3400526, at *7 (S.D.N.Y. July 12, 2024) (quoting Livingston v. City of New York, 563 F. Supp. 3d 201, 232 n.14 (S.D.N.Y. 2021)). Therefore, because Plaintiffs NYSHRL claims accrued after 2019, they rise and fall with [her] NYCHRL claims, id. (citation omitted), and the Court will thus analyze Plaintiffs NYSHRL and NYCHRL claims separately from her Title VII claims.
The Court will first discuss Plaintiffs religious discrimination claims and then her gender discrimination claims.
A. Religious Discrimination Claims (Counts I, XII, and XIV)
In support of her Title VII, NYSHRL, and NYCHRL claims against the City Defendants for religious discrimination — Counts I, XII, and XIV, respectively — Plaintiff claims that the City took an adverse employment action against her because of her sincerely held religious beliefs by placing her on unpaid leave and subsequently terminating her employment. SAC ¶¶ 146-147, 174. Plaintiff claims that she informed the City that her religious beliefs prevented her from receiving the COVID-19 vaccination because Islam prohibits her from being vaccinated against all conditions, ailments[,] and impairments, including the corona virus. Id. ¶ 81. Plaintiff requested an accommodation or exemption from the COVID-19 vaccine. Id. She did not demand a particular accommodation, but indicated her willingness to undergo
1. Legal Standards
Title VII defines religion to include all aspects of religious observance and practice, as well as belief.
The NYSHRL and NYCHRL further provide that it is an unlawful discriminatory practice for any employer, or an employee or agent thereof, to impose upon a person as a condition of obtaining or retaining employment . . . any terms or conditions that would require such person to violate or forego a sincerely held practice of his or her religion.
2. Analysis
i. Title VII Claim for Failure to Accommodate (Count I)
Plaintiff claims that she was discriminated against based on her religion because the DOC placed her on unpaid leave and fired her for refusing to be vaccinated against COVID-19 instead of accommodating her by allowing her to continue weekly COVID testing. SAC ¶¶ 104, 115, 146-147, 151, 174.
To make out a prima facie case of religious discrimination based on a failure to accommodate in violation of Title VII, plaintiffs must allege that they (1) held a bona fide religious belief conflicting with an employment requirement; (2) informed [their] employers of this belief; and (3) were disciplined for failure to comply with the conflicting employment requirement. Rizzo, 2024 WL 3274455, at *2 (quoting Baker v. The Home Depot, 445 F.3d 541, 546 (2d Cir. 2006)); see also Greenberg, 2024 WL 4252550, at *5 (same). If the prima facie case is shown, the burden then shifts to the employer to show it could not accommodate the employees religious beliefs without undue hardship. Algarin v. N.Y.C. Health + Hosps. Corp., 678 F. Supp. 3d 497, 508 (S.D.N.Y. 2023) (quoting Knight v. Conn. Dep‘t of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001)), aff‘d, No. 23-1063, 2024 WL 1107481 (2d Cir. Mar. 14, 2024) (summary order). An accommodation presents an undue hardship if the employer can show [that] a burden is substantial in the overall context
Plaintiff argues that while she is not required to plead a prima facie case, she has presented a prima facie case of failure to accommodate by alleging she (1) had a sincere religious belief, (2) that she informed City Defendants about, and (3) this led to an adverse employment decision. Pl. City Opp. at 6-7. The Court agrees with Plaintiff. Plaintiff has sufficiently alleged that she held a sincere religious belief that conflicts with the employment requirement to obtain a vaccination, that she informed DOC of this belief, and that she was disciplined for failure to comply with that requirement by being placed on leave and then terminated. The City Defendants attempt to argue that Plaintiff has not met her burden because she was terminated for her failure to comply with the vaccine requirement and not because of her religious belief is unavailing. As courts in this Circuit have explained, a plaintiffs complaint that her defendant-employer suspended her without pay and ultimately terminated her employment because she did not take the required COVID-19 vaccine due to conflicting sincerely held religious beliefs is sufficient to plead the final element of the prima facie case of religious discrimination for failure to accommodate. Jackson v. N.Y. State Off. of Mental Health, No. 23-cv-04164 (JMA), 2024 WL 1908533, at *6 (E.D.N.Y. May 1, 2024) (quoting Algarin, 678 F. Supp. 3d at 509); see also Haczynska v. Mount Sinai Health Sys., Inc., --- F. Supp. 3d ---, 2024 WL 3178639, at *12 (E.D.N.Y. June 26, 2024) (same).
The City Defendants next (and principally) argue that granting an accommodation to Plaintiff would have presented an undue hardship to the DOC and that the DOC therefore did not violate Title VII when it denied her request for an accommodation or exemption. City Dfs. Br. at 12-15. Plaintiff responds that the affirmative defense of undue hardship does not appear on the face of the SAC and that, unlike in other cases where an undue hardship was found as a matter of law, providing Plaintiff with an accommodation would not require the DOC to violate any law or regulation. Pl. City Opp. at 9-10.
Because undue hardship is an affirmative defense, it may be raised on a pre-answer motion to dismiss only if the facts establishing it are clear from the face of the complaint. Rizzo, 2024 WL 3274455, at *3 (quoting Dennison v. Bon Secours Charity Health Sys. Med. Grp., P.C., No. 22-cv-02929 (CS), 2023 WL 3467143, at *5 (S.D.N.Y. May 15, 2023)). In evaluating undue hardship on a motion to dismiss, a district court may consider the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken. Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993); see, e.g., Kane v. De Blasio, 623 F. Supp. 3d 339, 347 n.7, 362 n.30 (S.D.N.Y. 2022) (considering facts incorporated by reference in the amended complaint in determining whether undue hardship existed), aff‘d in part, vacated in part on other grounds sub nom. New Yorkers for Religious Liberty, Inc. v. City of New York, 121 F.4th 448 (2d Cir. 2024). The Court finds that undue hardship appears on the face of the complaint and that the City Defendants have sufficiently shown that granting Plaintiff an accommodation would have imposed an undue hardship on the DOCs operations.
The Court agrees with the City Defendants that it can consider the denial letter on this motion to dismiss because its contents were incorporated by reference in the Complaint. SAC ¶¶ 104-106, 112-116. The denial letter provided that an exemption from the COVID-19 vaccine mandate would cause the DOC undue hardship, citing the unique threats that COVID-19 posed to the DOC, the deaths of service members, and the difficulties the DOC had been experiencing in staffing jail facilities. SAC ¶ 106; see Dkt. 54-2 at 1-2. The letter further stated that an accommodation would present an undue hardship because masks and weekly testing may be insufficient to control the spread of COVID-19 in the Department. Dkt. 54-2 at 1-2. The letter also addressed the need for employees like Plaintiff, who were at non-jail commands like the HMD, to receive the vaccination, since widespread staffing shortages at most jail facilities had required the DOC to redeploy uniformed Members of Service at non-jail commands to the jail facilities to fill the posts not manned due to the absences. Id. at 1. As a result, permitting Plaintiff to remain unvaccinated would present an undue hardship . . . because many Members of Service have been out sick recently and the Department has had difficulty fully staffing the facilities. Id. at 1-2. The letter concluded that the DOC has a great need to make sure that Members of Service are healthy and manning their posts. Id. at 2.
Even accepting all of Plaintiffs allegations as true and drawing all inferences in her favor, the Court concludes that the SAC does not plead allegations that contradict the DOCs finding of undue hardship. Plaintiff has not pleaded anything to refute that the DOC was experiencing deaths of service members, many service members calling out sick, and resultant difficulties in staffing. Plaintiff has also not pleaded anything to refute the DOCs contention in the denial letter that it would suffer undue hardship because staffing shortages had required the DOC to redeploy service members in non-jail commands, like the HMD where Plaintiff was working, to jail facilities. Plaintiff has also not refuted that she was working in person at the HMD, albeit a non-jail facility. SAC ¶¶ 84-85. That role required her to supervise approximately twenty other uniformed employees or correction officers, as well as medical staff contracted to work at the HMD to provide medical services to the DOC. Id. ¶¶ 69-70. These allegations, rather than contradicting the DOCs finding of undue hardship, confirm its rationale, since Plaintiffs role required her to work in person, in the health management division, and to interact with more than twenty other DOC staff members and medical staff who provided medical services to the DOC. Such a working arrangement presented opportunities for the spread of the coronavirus to other DOC staff members and medical providers, an undue burden on the DOC given its staffing shortages, redeployment processes, and medical crises. Plaintiffs failure-to-accommodate claim under Title VII is properly dismissed on this basis. See New Yorkers for Religious Liberty, 121 F.4th at 463 (affirming district courts dismissal of
Plaintiffs contention that there was a DOC-approved accommodation available that could and should have been made available to her does not change this conclusion. In both the SAC and her opposition to the City Defendants motion to dismiss, Plaintiff argues that the Teletype Order unequivocally declare[d] that weekly testing is an accommodation that would not cause DOC undue hardship. Pl. City Opp. at 15; see also SAC ¶¶ 90-97 (repeatedly claiming that the Teletype Order declared that weekly testing and submission of negative PCR results was the accommodation from the vaccine mandate that would not cause [the DOC] undue hardship). The City Defendants disagree, and argue that, read in its entirety, the Teletype Order only establishes that if an officer was approved for a reasonable accommodation, they could only be accommodated with weekly testing and the submission of negative PCR results. See City Dfs. Br. at 11. The Court agrees with the City Defendants.
If a document relied on in the complaint contradicts allegations in the complaint, the document, not the allegations, control, and the court need not accept the allegations in the complaint as true. Poindexter v. EMI Rec. Grp. Inc., No. 11-cv-00559 (LTS), 2012 WL 1027639, at *2 (S.D.N.Y. Mar. 27, 2012); see also Idle Media, Inc. v. Create Music Grp., Inc., No. 24-cv-00805 (JLR), 2024 WL 5009713, at *10 (S.D.N.Y. Dec. 6, 2024) (same). The Teletype Order, incorporated into the SAC by Plaintiffs repeated quotations from it, reminded employees of the deadline for submitting proof of vaccination and for seeking a reasonable accommodation request. Dkt. 54-3 at 1 (emphasis and capitalization omitted). It advised of the process for requesting accommodations. Id. Finally, the Teletype Order provided that the only allowable accommodation from the vaccination mandate that will not cause undue hardship and/or disruption to the department is weekly testing and submission of negative PCR results. Id. (further capitalization omitted). When read in context, this paragraph indicates that if an accommodation were to be permitted, the only one that would be permitted was a weekly testing accommodation; it does not in any way indicate that every request for an accommodation would be granted or that in every circumstance an accommodation with testing would not create an undue hardship for the DOC. The Court thus concludes that the Teletype Order does not contradict the DOCs individualized decision that accommodating Plaintiff would create an undue hardship.
Vasquez v. City of New York, which Plaintiff cites in support of her claim, Pl. City Opp. at 12, does not change this Courts conclusion. No. 22-cv-05068 (HG), 2024 WL 1348702 (E.D.N.Y. Mar. 30, 2024). In Vasquez, a light-duty firefighter was denied an exemption from the vaccine mandate because of the undue hardship on the Fire Department of New York (FDNY) based on the state of the public health emergency, the nature of the [FDNY]s life-saving mission, and the impact to the safety and health of [FDNY] members and the public that [FDNY] members regularly interact with. Id. at *7-8 (alterations in original). The court denied the motion to dismiss the failure to accommodate claim based on religion because the court could not determine on the face of the complaint that the requested accommodation would cause an undue hardship. Id. Plaintiff here, however, is situated differently from the light-duty firefighter in Vasquez, whose role required
In a more recent (and binding) decision, the Second Circuit in New Yorkers for Religious Liberty, Inc. v. City of New York, 121 F.4th 448, 462-63 (2d Cir. Nov. 13, 2024) affirmed a district courts dismissal of claims brought by city employees who sought a religious accommodation from the COVID-19 vaccine mandate on a motion to dismiss, finding that the complaint did not refute the defendants undue hardship rationale. Id. at 462-63. The defendant had articulated that accommodating plaintiff classroom teachers would cause an undue hardship because the unvaccinated teachers would present a risk to vulnerable and unvaccinated students. Id. The Second Circuit found that the plaintiffs did not plead allegations that contradicted the undue hardship rationale that was identified on the face of the complaint because plaintiffs offer[ed] only threadbare conclusions about how they did not pose a threat to anyone by being unvaccinated. Id. at 463. Therefore, the Second Circuit affirmed the dismissal of the religious accommodation claims, citing to cases that permitted dismissal on the pleadings of religious accommodation claims based on undue hardship. Id. (citing, for example, Iowa Pub. Emps. Ret. Sys. v. MF Glob., Ltd., 620 F.3d 137, 145 (2d Cir. 2010) (explaining that an affirmative defense may be raised by a pre-answer motion to dismiss under Rule 12(b)(6) . . . if the defense appears on the face of the complaint) (quoting Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998)); and Lowe v. Mills, 68 F.4th 706, 719 (1st Cir. 2023) (affirming dismissal of religious accommodation claim where pleadings demonstrated undue hardship)); see also Beickert v. N.Y.C. Dep‘t of Educ., No. 22-cv-05265 (DLI), 2023 WL 6214236, at *5 (E.D.N.Y. Sept. 25, 2023) (accommodating request from special education teacher in the New York City public schools would have imposed an undue hardship on the Department of Education due to the health and safety risk it would present to the vulnerable and still primarily unvaccinated student population and other employees (citation omitted)).
Similarly, the Court finds here that the unique problems facing the DOC during the COVID-19 pandemic support the DOCs assessment of an undue hardship. The denial letter cited the fact that the DOCs employees worked in facilities that housed a vulnerable population, often [in] confined spaces with narrow passages that do not always allow for social distancing, and the layout and the duration of time people spend near each other in the facilities led to easy transmission of COVID-19 and the deaths of detainees and DOC
For these reasons, the Court grants the City Defendants motion to dismiss Plaintiffs Title VII failure to accommodate claim.7
ii. Title VII , NYSHRL , and NYCHRL Disparate Treatment Claims (Counts I, XII, and XIV)
Plaintiff also claims that City Defendants discriminated against her on the basis of her religion in violation of
An individual plaintiff may prove disparate treatment under
In connection with her disparate treatment claim, Plaintiff alleges that the City Defendants denied her request for religious accommodations from the vaccine mandate (andall religious requests), while granting every medical accommodation requested. SAC ¶¶ 150, 152. These general allegations are unsupported by factual detail that would permit the Court to assess the plausibility of her claim. “[T]o survive a motion to dismiss, a plaintiff must support her claims with ‘specific and detailed factual allegations, not stated in wholly conclusory terms.‘” Williams v. N.Y.C. Health & Hosp. Corp., No. 08-cv-04123 (RRM), 2010 WL 2836356, at *4 (S.D.N.Y. July 16, 2010) (quoting Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000)). Courts in this Circuit have routinely rejected
For example, in Harewood v. New York City Department of Education, the court dismissed plaintiff‘s Title VII disparate treatment claim where the plaintiff “assert[ed] more generally that ‘younger and/or Dominican teachers who were ineffectively rated were not asked to leave the school,‘” but “provide[d] no names of individuals who were similarly situated to her” and “no facts” beyond “the conclusory assertion that this occurred.” No. 18-cv-05487 (KPF) (KHP), 2019 WL 3042486, at *7-8 (S.D.N.Y. May 8, 2019), report and recommendation adopted, 2019 WL 2281227 (S.D.N.Y. May 29, 2019). The court concluded that the allegations were “insufficient to give rise to an inference of discrimination with respect to the actions taken against Plaintiff.” Id. at *8.
Here, too, Plaintiff has made a conclusory, general allegation that the City Defendants discriminated against her because they granted all medical accommodations and denied all religious accommodation requests. She cites to only a few individuals, none of which are pleaded to be similarly situated to her. Plaintiff identifies one other employee, a Captain,whose religious accommodation was denied, but provides no detail about her other than her name, gender, and position. SAC ¶ 151. She identifies three employees who continued to work unvaccinated but provides no detail about the accommodations they received, the basis for their accommodations, how many employees they supervised or interacted with, or what their duties were beyond the bare allegation that they had “daily direct contact with [the] inmates and the public.” Id. ¶ 161. These allegations are insufficient to support Plaintiff‘s general assertion that the DOC discriminated against her by denying her request for a religious accommodation. Based on the generality of these allegations, Plaintiff has not “nudged [her] claims across the line from conceivable to plausible,” Twombly, 550 U.S. at 570, and the
The Court turns next to the
B. Gender-Discrimination Claims (Counts II, XIII, and XV)
Plaintiff next alleges that the City Defendants engaged in gender discrimination in violation of
1. Title VII Gender Discrimination Claim (Count II)
“To state a claim for . . . gender-based discrimination, plaintiff must allege (i) she is a member of a protected class, (ii) she was qualified for the position she held, (iii) she suffered an adverse employment action, and (iv) the adverse action took place under circumstances giving rise to an inference of discrimination.” Parra v. City of White Plains, 48 F. Supp. 3d 542, 553 (S.D.N.Y. 2014). “If a comparison with another employee is to lead to an inference of discrimination it is necessary that the employee be similarly situated in all material respects.” Id. (quoting Staff v. Pall Corp., 233 F. Supp. 2d 516, 536 (S.D.N.Y. 2002), aff‘d, 76 F. App‘x 366 (2d Cir. 2003) (summary order)).
Plaintiff alleges in Count II that she is a member of a protected class based on gender and that she suffered an adverse employment action—her termination. SAC ¶¶ 15, 174, 190-194. The SAC identifies three male employees: Captain Doninelli Christian, who worked at the Manhattan Detention Center, and Correction Officers Gilbert Frederique and Jeffrey, who worked at the complex on Rikers Island where Plaintiff worked before she was reassigned to the HMD. SAC ¶¶ 63, 68, 160-164. All three employees did not obtain the COVID-19 vaccine and “perform[ed] duties which involved daily direct contact with . . . inmates and the public.” Id. ¶ 161. Plaintiff argues that she has stated a plausible claim for gender discrimination because the DOC exempted certain male employees from the vaccine mandate, while enforcing the mandate with regard to herself and other female employees. Pl. City Opp. at 21.
The City Defendants argue that Plaintiff has not pleaded facts sufficient to permit a plausible inference that she was treated less well because of her gender because (1) sheprovides only conclusory allegations to support her gender discrimination claims, (2) she does not plead facts that plausibly suggest that the DOC granted accommodations based on gender, and (3) her proposed comparators are not similarly situated to her. City Dfs. Br. at 6-7. The Court agrees.
First, Plaintiff‘s allegations supporting a disparate treatment claim based on gender are insufficient to state a claim because they are largely conclusory. Plaintiff alleges that the City Defendants denied her an accommodation “because of their discriminatory animus directed against Plaintiff because of her gender” and that the DOC had a “practice of permitting
Plaintiff‘s identification of three proposed male comparators and another female employee whose accommodation request was denied, SAC ¶¶ 151, 160-164, does not salvage her claim because she has not provided specific detail about these comparators to permit the Court to conclude that her proposed comparators are “similarly situated in all material respects,” Parra, 48 F. Supp. 3d at 553 (quoting Staff, 233 F. Supp. 2d at 536). Plaintiff identifies three male DOC employees who she alleges were permitted to work unvaccinated: Captain Christian, Correction Officer Frederique, and Correction Officer Jeffrey. SAC ¶ 160. Plaintiff fails to allege whether the male employees sought accommodations or the basis for any accommodation they received. If the male employees received medical accommodations, which they presumably did since Plaintiff alleges that no religious accommodation requests were granted, then they are not similarly situated to her. Plaintiff‘s allegations about the roles of the comparators also do not establish that they were similarly situated to her. Christian worked in the Manhattan Detention Center, and the two male correction officers she identifies worked at the Robert N. Daveron Complex on Rikers Island, id. ¶¶ 162-163, while Plaintiff worked in the Health Management Division during the relevant time period, id. ¶ 68. Plaintiff also does not plead facts regarding how many employees they supervised or interacted with, or what their duties were beyond the bare allegation that they had “daily direct contact with those inmates and the public.” Id. ¶ 161. The Court thus concludes that, while Plaintiff‘s burden is slight at this stage of litigation, she has not identified similarly situated employees outside her protected group.
Further, Plaintiff has not alleged any other basis for gender discrimination. Plaintiff has not identified degrading comments made by her employer, “invidious comments about others in the employee‘s protected group,” or troublesome aspects about “the sequence of events leading to the plaintiff‘s discharge,” Littlejohn v. City of New York, 795 F.3d 297, 312(2d Cir. 2015) (quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)). In fact, Plaintiff‘s pleading contradicts her assertion of gender discrimination given that she alleges that the DOC denied all religious accommodations, SAC ¶ 156, which would have presumably included both men
Because the SAC does not state a plausible claim for gender discrimination under
2. NYSHRL and NYCHRL Gender Discrimination Claim Against the City Defendants (Counts XIII and XV)
The
As with Plaintiff‘s
While the
Plaintiff‘s reliance on Herman v. City of New York, No. 21-cv-06295 (ALC), 2023 WL 6386887 (S.D.N.Y. Sept. 29, 2023), is misplaced. See Pl. City Opp. at 22. In Herman, the court concluded that plaintiff pleaded a discrimination claim under
As a result, the Court likewise dismisses Counts XIII and XV against the City Defendants.
III. Section 1983 Claims Against City Defendants (Counts V, VI, VII, and VIII)
Plaintiff alleges claims under
A. Legal Standard
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
B. Claims Against Molina in his Official Capacity (Counts V and VII)
Plaintiff bring claims against Molina in his official capacity as DOC Commissioner under
1. Legal Standard for Monell Claims
A claim against a municipal officer in his official capacity is “in effect a claim against the governmental entity itself.” Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012). Claims against municipalities are considered under the standard for municipal liability articulated in Monell v. Department of Social Services, 436 U.S. 658 (1978). See Lore, 670 F.3d at 168. Under Monell, “a municipality is not liable for the unlawful actions of an employee under a theory of respondeat superior.” Greene, 725 F. Supp. 3d at 428. Rather, a municipality may be liable under
2. Religious Discrimination Section 1983 Claim (Count V)
The City Defendants argue that Plaintiff‘s
To hold Molina liable in his official capacity, Plaintiff “may satisfy the ‘policy or custom’ requirement by alleging one of the following“:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that
caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates . . . .
Staboleski v. City of New York, No. 19-cv-08834 (LJL), 2021 WL 796616, at *4 (S.D.N.Y. Mar. 1, 2021) (quoting Johnson v. Paul, No. 17-cv-03654 (KMK), 2018 WL 2305657, at *3 (S.D.N.Y. May 21, 2018)). The Court considers each ground for Monell liability in turn and concludes that Plaintiff falls short.
First, Plaintiff has not alleged a formal policy on the DOC‘s part to deny all religious accommodations. For a municipality to be liable for a constitutional violation caused by a formal policy, that policy must be in the form of “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality‘s] officers.” Monell, 436 U.S. at 690. But neither of the formal policies alleged in the complaint—the City‘s vaccine mandate for city employees or the DOC vaccine mandate—set forth a formal policy to denyall religious accommodations. Thus, the Court concludes that Plaintiff has not demonstrated that there was a formal policy to deny all religious accommodations.
Second, Plaintiff has not alleged facts that give rise to a custom-or-practice theory of municipal liability. “[A]n act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.” Bowen v. County of Westchester, 706 F. Supp. 2d 475, 284 (S.D.N.Y. 2010) (quoting Bd. of Cnty. Comm‘rs v. Brown, 520 U.S. 397, 404 (1997)). To do so, the plaintiff must establish that the custom or practice is “so permanent and well settled as to constitute a custom or usage with the force of law.” Tieman v. City of Newburgh, No. 13-cv-04178 (KMK), 2015 WL 1379652, at *16 (S.D.N.Y. Mar. 26, 2015) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)).
Here, the only allegations of a practice so persistent and widespread that it constitutes a custom or usage are Plaintiff‘s assertion that the DOC denied each request for a religious accommodation and granted every request for a medical accommodation based on Molina‘s instructions, supported by Plaintiff‘s allegation that both she and Captain Janelle Murray had their requests for religious accommodations denied. See, e.g., SAC ¶¶ 45-48, 99, 151. “The broader the policy a plaintiff seeks to plead, the greater the factual allegations that are required to render it plausible.” Patterson v. City of New York, No. 16-cv-03525 (NGG), 2017 WL 3432718, at *14 (S.D.N.Y. Aug. 9, 2017) (quoting White v. City of New York, 206 F. Supp. 3d 920, 937 n.2 (S.D.N.Y. 2016)). “Absent specific examples or some other form of supporting evidence, Plaintiff‘s generalized allegations” that the City Defendants denied all religious accommodations and granted all medical allegations “are insufficient” to sustain her Monell claim. Id.; see also, e.g., Ki v. City of New York, No. 20-cv-04343 (ARR) (JRC), 2022 WL5423642, at *6 (E.D.N.Y. Sept. 1, 2022) (“A plaintiff must provide a large quantity of examples that are sufficiently similar to each other.“), report and recommendation adopted sub nom. Ki v. Kim, 2022 WL 4551378 (E.D.N.Y. Sept. 29, 2022); Brock v. City of New York, No. 21-cv-03087 (PGG), 2022 WL 4544966, at *3 (S.D.N.Y. Sept. 29, 2022) (where plaintiff alleged “at least twenty other individuals” had experienced the same issues, but did not “identify those individuals” or “recount their specific experiences,” Monell claim failed due to the lack of “specific allegations regarding the systemic nature” of the alleged practice).
In Patterson, for example, plaintiff alleged that there was widespread preferential treatment of Jewish criminal suspects in the NYPD, alleging that the orthodox Jewish community had fixers in the NYPD and that these fixers assisted in a variety of ways, including avoiding and voiding arrests, undercharging suspects, and intervening with the district attorney. See 2017 WL 3432718, at *14. The court concluded that these general allegations were insufficient to sustain a Monell claim based on a theory of a persistent and widespread practice. Id. at *15. Similarly here, Plaintiff‘s conclusory claim, without any factual support, that the DOC denied all religious accommodations is too generalized to sustain her claim. For example, Plaintiff has not indicated how many DOC employees sought religious accommodations or where they worked within the DOC. So too for the medical accommodations. The lack of detail about the similarity and scope of denials for accommodations prevents the Court from determining that Plaintiff has adequately pleaded that the DOC had an alleged custom or practice of denying any accommodation request sought based on religion. See Colon v. City of Rochester, 419 F. Supp. 3d 586, 605 (W.D.N.Y. 2019) (in assessing whether past incidents give rise to widespread practice claim, “courts typically consider both the number of alleged prior incidents and the degree of similarity that they bear to the incident that gave rise to the lawsuit at bar” (emphases added)).
Plaintiff has identified two instances in a period of slightly less than one-and-a-half years where a religious accommodation was denied: her own case and that of Captain Janelle Murray. She has identified no specific examples of DOC employees whose medical accommodations were approved. Such sparse pleading falls short of nudging a Monell claim that there was a persistent and widespread practice of denying all religious accommodations and granting all medical accommodations across the line from conceivable to plausible. While “[t]here is no set number of incidents that make a practice ‘widespread,’ . . . courts have found a wide range of instances,” including allegations of two, three, four, eight, and even thirteen examples, “insufficient to plausibly allege a municipal custom.” Gem Fin. Serv., Inc. v. City of New York, 298 F. Supp. 3d 464, 491-92 (E.D.N.Y. 2018); see, e.g., Jones v. Town of East Haven, 691 F.3d 72, 74-75, 85 (2d Cir. 2012) (where plaintiff alleged a policy of deliberate indifference to Black people, two or three instances, over a period of three years, fell “far short” of showing a persistent or widespread practice); Giaccio v. City of New York, 308 F. App‘x 470, 472 (2d Cir. 2009) (summary order) (four examples fell “far short of establishing a practice that is ‘so persistent or widespread’ as to justify the imposition of municipal liability“); White, 206 F. Supp. 3d at 937-38 (where plaintiff alleged an NYPD custom or policy of abusing transgender people, “six incidents and one newspaper article” over ten years failed to render conclusory allegations of the existence of a policy plausible at motion to dismiss); Cruz v. City of New York, No. 15-cv-02265 (PAE), 2016 WL 234853, at *4-5 (S.D.N.Y. Jan. 19, 2016) (where plaintiff alleged consistent NYPD policy of fabricating evidence, imprisoning innocent persons wrongfully arrested, and imprisoning innocent persons even where credible evidence exonerated them, allegations of eight instances between 2001 to 2006 did not establish
Finally, Plaintiff has not alleged facts that support either a final policymaker or a failure-to-train-or-supervise theory of municipal liability. She has not alleged that Molina “has authority to formulate the rules governing personnel decisions,” Baity v. Kralik, 51 F. Supp. 3d 414, 437 (S.D.N.Y. 2014), including adopting vaccine mandates or the DOC‘s internal vaccine policy, and indeed the record indicates that a different city agency‘s commissioner directed the adoption of the city-employee vaccine mandate and related policies, see Dkt. 54-1.8 She also has not alleged any facts regarding the inadequate training or supervision of DOC employees involved in the review of vaccine accommodation requests. Cf. Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992) (claims of inadequate training or supervision can give rise to municipal liability where the failure to train or supervise amounts to deliberate indifference).
As a result, Plaintiff has not satisfactorily alleged the existence of a municipal policy or custom that was the moving force behind any alleged constitutional violation based on religious discrimination. The Court dismisses Count V.
3. Gender Discrimination Section 1983 Claim (Count VII)
Plaintiff alleges that the City Defendants had a practice of permitting unvaccinated male employees to retain employment while terminating the employment of unvaccinated female employees, including Plaintiff. SAC ¶ 167. The City Defendants move to dismiss this claim. The Court considers each ground for Monell liability and concludes that Plaintiff has not demonstrated the existence of such a policy or custom.
First, Plaintiff has not alleged the existence of a formal policy to permit male employees to remain unvaccinated while terminating female employees who were unvaccinated. To satisfy the “formal policy” route, the policy must be in the form of a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality‘s] officers.” Monell, 436 U.S. at 690. As with Plaintiff‘s religious-discrimination Monell claim, neither of the formal policies alleged in the SAC—either the City‘s vaccine mandate for city employees
Second, Plaintiff has not adequately alleged facts that give rise to a custom-or-practice theory of municipal liability. Plaintiff conclusorily alleges that there was a “practice of permitting unvaccinated male DOC employees to retain their employment, while terminating Plaintiff‘s employment and the employee [sic] of other unvaccinated female DOC employees, including Plaintiff.” SAC ¶ 167. In support of this conclusory allegation, she alleges thatthree male DOC employees continued working without a vaccination; she does not allege on what basis they were permitted to work unvaccinated. See SAC ¶¶ 159-160. She does not even allege that the DOC terminated the employment of the other female employee whose request for an accommodation was denied. SAC ¶ 151. Plaintiff‘s failure to allege the existence of any other incident similar to hers “dooms” her claim because “a custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct . . . without more evidence that connects th[e] incident to a municipal policy or practice.” Bird v. County of Westchester, No. 20-cv-10076 (NSR), 2022 WL 2263794, at *12 (S.D.N.Y. June 23, 2022) (first quoting Dumel v. Westchester County, No. 19-cv-02161 (KMK), 2021 WL 738365, at *5 (S.D.N.Y. Feb. 25, 2021); and then quoting Pittman v. City of New York, No. 14-cv-04140 (ARR), 2014 WL 7399308, at *7 (E.D.N.Y. Dec. 30, 2014)). Plaintiff has therefore failed to allege the existence of a widespread and persistent custom or practice of gender discrimination giving rise to Monell liability.
Finally, Plaintiff has not alleged facts that support either a final-policymaker or failure-to-train-or-supervise theory of municipal liability. As with her religious discrimination claim, she has not alleged that Molina “has authority to formulate the rules governing personnel decisions,” Baity, 51 F. Supp. 3d at 437, including adopting vaccine mandates, the DOC‘s internal vaccine policy, or the DOC‘s policy about whether to terminate unvaccinated officers, see supra. Plaintiff also has not alleged facts asserting the inadequate training or supervision of DOC employees involved in termination decisions regarding unvaccinated DOC workers.
As a consequence, Plaintiff has not satisfactorily alleged the existence of a municipal policy or custom that was the moving force behind any alleged constitutional violation based on gender. The Court dismisses Count VII.
C. Claims Against Molina in his Individual Capacity (Counts VI and VIII)
1. Legal Standard
To state a claim under
2. Failure to State a Claim Against Molina in his Individual Capacity (Counts VI and VIII)
Plaintiff further seeks to hold Molina liable in his individual capacity under
i. No Personal Involvement
To hold Molina liable in his individual capacity, Plaintiff must “establish [his] personal involvement in the claimed violation.” Collins v. City Univ. of N.Y., No. 21-cv-09544 (NRB), 2023 WL 1818547, at *6 (S.D.N.Y. Feb. 8, 2023) (quoting Warren v. Pataki, 823 F.3d 125, 136 (2d Cir. 2016)). The City Defendants argue that Plaintiff was required to allege that Molina “made the ultimate decision to deny [her] religious reasonable accommodation to the Mandate” and has not done so. City Br. at 17. The City Defendants also argue that the letter sent to Plaintiff notifying her that her request had been denied indicates that DOC‘s Equal Employment Opportunity (“EEO“) Office denied the requested accommodation, not Molina. Id. Plaintiff relies on her claim that Molina established a policy of denying all religious accommodation requests while granting all medical accommodations to argue that she has satisfactorily alleged Molina‘s personal involvement. See Pl. City Opp. at 7-8.
The Court agrees with City Defendants. There are no allegations that Molina was involved in the review or denial of Plaintiff‘s accommodation request or appeal. While personal involvement can be established by showing that “the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom,” Littlejohn, 795 F.3d at 314, Plaintiff has not satisfactorily alleged that Molina personally created such a policy. See supra. Plaintiff‘s
ii. Qualified Immunity
Even if Molina personally engaged in a constitutional violation, the Court would hold that qualified immunity protected Molina. An individual defendant is entitled to qualified immunity if their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” or if “it was objectively reasonable for [the defendant] to believe that his actions were lawful at the time of the challenged act.” Tooly v. Schwaller, 919 F.3d 165, 172 (2d Cir. 2019) (alteration in original). The Court will address qualified immunity with respect to the procedural due process claim and then the equal protection claim.
First, Plaintiff has cited no case to this Court, and the Court is not
Second, while it is a matter of clearly established law that employment discrimination based on race or gender can violate the Equal Protection Clause when the “discrimination was intentional,” Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (collecting cases), Plaintiff has not cited any case holding that the Equal Protection Clause is violated where the plaintiff has not shown that the circumstances give rise to an inference of discrimination, let alone intentional discrimination. Indeed, courts in this Circuit have rejected equal protection claims based on differential treatment in application of a vaccine mandate based on religion where, as here, the plaintiff failed to identify similarly situated individuals treated differently. See, e.g., Mora v. N.Y. State Unified Ct. Sys., No. 22-cv-10322 (VB), 2023 WL 6126486, at *14 (S.D.N.Y. Sept. 19, 2023); Conde v. Mid Hudson Regional Hosp. Med. Ctr., No. 22-cv-03085 (VB), 2024 WL 168282, at *5 (S.D.N.Y. Jan. 12, 2024) (dismissing equal protection claim where plaintiff did not adequately identify any similarly situated individual whom defendants treated differently). The Court therefore concludes that Molina is also entitled to qualified immunity as to the equal protection claim.
Since Molina would be protected by qualified immunity even if Molina was personally involved with a constitutional violation, Plaintiff‘s
IV. Title VII, NYSHRL, and NYCHRL Claims Against Salesforce (Counts III, IV, XII, XIII, XIV, and XV)
Moving next to Salesforce, Salesforce seeks to dismiss the Title VII, NYSHRL, and NYCHRL claims against it because Plaintiff has not alleged Salesforce was her employer. Salesforce Df. Br. at 5-6. Plaintiff argues that Salesforce exercised control, along with the City Defendants, over the terms of her employment such that an employer-employee relationship exists. Pl. Salesforce Opp. at 19-20.
A. Legal Standard
The Second Circuit has long held that “the existence of an employer-employee relationship is a primary element of Title VII claims.” Gulino v. N.Y.S. Educ. Dep‘t, 460 F.3d 361, 370 (2d Cir. 2006). Similarly, a NYSHRL or NYCHRL plaintiff must establish the existence of an employer-employee relationship. Hanley v. N.Y.C. Health & Hosps. Corp., 722 F. Supp. 3d 112, 119 (E.D.N.Y. 2024).
“[I]n alleging an employer-employee relationship, an employee is not squarely limited to claims against his or her formal employer.” Felder v. U.S. Tennis Ass‘n, 27 F.4th 834, 838 (2d Cir. 2022) (Title VII claim); see Fowler v. Scores Holding Co., 677 F. Supp. 2d 673, 680-81 (S.D.N.Y. 2009) (plaintiff may assert claims under the NYSHRL or NYCHRL “against an entity that is not formally his or her employer” under “the single and joint employer doctrines“). A plaintiff-employee may also, pursuant to the “joint employer” doctrine, “assert Title VII liability against a ‘constructive employer’ — an entity that shares in controlling the terms and conditions of a plaintiff‘s employment.” Felder, 27 F.4th at 838; see Fowler, 677 F. Supp. 2d at 681. The Second Circuit has instructed that non-exhaustive factors to consider in determining whether an entity is a “joint employer” “include[e] control over an employee‘s hiring, firing, training, promotion, discipline, supervision, and handling of records, insurance, and payroll.” Felder, 27 F.4th at 838; see also Torres v. Brend Restoration Servs. Inc., No. 22-cv-01191 (DEH), 2024 WL 4355030, at *3 (S.D.N.Y. Sept. 30, 2024) (same); Moody v. Empire Hotel Dev., Inc., No. 20-cv-02203 (PMH), 2023 WL 5480729, at *5 (S.D.N.Y Aug. 24, 2023) (applying Felder factors to NYSHRL claim); Pappas v. XP Controle Participacoes S.A., No. 19-cv-11137 (GHW), 2023 WL 317353, at *4 (S.D.N.Y. Jan. 18, 2023) (same to NYCHRL claim). “[A]ll of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” Torres, 2024 WL 4355030, at *3 (quoting Felder, 27 F.4th at 844).
B. Salesforce Is Not Liable Under Title VII, the NYSHRL, or the NYCHRL (Counts III, IV, XII, XIII, XIV, and XV)
The Court considers Plaintiff‘s Title VII, NYSHRL, and NYCHRL claims together because each rises and falls on whether Salesforce can be considered Plaintiff‘s joint employer.
The SAC does not establish that Salesforce exercised the kind of control over Plaintiff that would be necessary to establish a joint employment relationship. First, Plaintiff was hired by and worked for the DOC, and she never alleges that she was hired by Salesforce. SAC ¶ 54 (“The City Defendants employed Plaintiff from in or
The Court concludes that Salesforce‘s alleged involvement in the denial of Plaintiff‘s appeal is not enough to establish, even at the pleading stage, that Salesforce was her employer. Salesforce did not control Plaintiff‘s daily employment activities or her hiring or firing, nor did it impose the requirement that she be vaccinated. Even if the Court credited Plaintiff‘s allegation that Salesforce made the appeal decision, which is contrary to the documents incorporated by reference in the SAC, as will be discussed further infra, it would not conclude that Salesforce was Plaintiff‘s employer. Courts in this Circuit have determined that outside companies hired by the City to review appeals from similar denials are not employers within the meaning of Title VII. See Herman-Scott v. N.Y.C. Dep‘t of Health & Mental Hygiene, No. 23-cv-08103 (NRM), 2023 WL 8717009, at *1-2 (E.D.N.Y. Dec. 18, 2023). Accordingly, joint employer liability is inapplicable.
Since an employer-employee relationship is a prerequisite for liability under Title VII, the NYSHRL, and the NYCHRL, the Court dismisses Counts III, IV, XII, XIII, XIV, and XV of the SAC. See id.; Kiraly v. Cornell Coop. Extension of Del. Cnty., No. 23-cv-00446 (GTS), 2024 WL 1242320, at *13, 17 (N.D.N.Y. Mar. 22, 2024) (dismissing Title VII claim where court, applying Felder, found that defendant was not plaintiff‘s employer for the purposes of Title VII); Chavannes v. Bronx Parent Housing Network, No. 21-cv-05060 (JGK), 2022 WL 4124762, at *4-5 (S.D.N.Y. Sept. 9, 2022) (granting in part motion to dismiss Title VII, NYSHRL, and NYCHRL claims where plaintiff failed to demonstrate defendant was her joint employer).
V. Section 1983 Claims Against Salesforce (Counts IX and X)
Plaintiff next brings claims against Salesforce under
A. Legal Standard
Private parties are generally not liable under
For the purposes of section 1983, the actions of a nominally private entity are attributable to the state . . . (1) [when] the entity acts pursuant to the coercive power of the state or is controlled by the state (“the compulsion test“); (2) when the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the state, or the entity‘s functions are entwined with state policies (“the joint action test” or “close nexus test“); or (3) when the entity has been delegated a public function by the state (“the public function test“).
Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012) (alteration and omission in original) (quoting Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)); see Burke v. Verizon Commc‘ns, Inc., 661 F. Supp. 3d 277, 285 (S.D.N.Y. 2023) (same), aff‘d sub nom. Burke v. Hous. & Servs., Inc., No. 23-635, 2024 WL 2207054 (2d Cir. May 16, 2024) (summary order).
B. The Section 1983 Claims Against Salesforce Must Be Dismissed (Counts IX and X)
Salesforce argues that Plaintiff‘s
Plaintiff alleges that, “upon information and belief,” in or around 2020, Salesforce entered into a contract with the City to provide review services of claims by City employees, including appeals from COVID-19 vaccine accommodation or exemption decisions. SAC ¶ 28. She further alleges that “DOC, the City of New York, and Molina delegated to Salesforce their authority to determine the appeal of New York City employees, including employees working for DOC,” id. ¶ 29, and that Salesforce “reviewed and made the determination whether to grant or deny the appeal of DOC employees,” id. ¶ 30. Plaintiff also alleges that Salesforce “acted under color of state law and the conduct and actions of Defendant Salesforce constituted state action.” Id. ¶ 25. Plaintiff alleges that when Molina became DOC Commissioner, he “instructed” Salesforce to “exclude from application of the Teletype Order” — that is, the determination that the only accommodation that would not cause an undue hardship to the DOC was weekly testing — “all employees including Plaintiff who requested a religious accommodation.” Id. ¶ 99. Finally, Plaintiff alleges that “Salesforce‘s interaction with Plaintiff was limited to transmitting an email acknowledging receipt of her appeal and thereafter transmitting another email summarily denying her appeal.” Id. ¶ 131; see also id. ¶¶ 128-129; id. ¶ 135 (quoting from email denying appeal).
Plaintiff has not demonstrated that Salesforce took action against her under color of state law. Plaintiff argues state action only under the “joint action” or “close nexus” test. See Pl. Salesforce Opp. at 10-11. “The touchstone of joint action is often a ‘plan, prearrangement,
Plaintiff has not provided any factual allegations in support of her belief that the DOC entered into a contract with Salesforce to administer the appeals process and that the City Defendants had a policy of denying all religious accommodation requests that they shared with Salesforce. See Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (“A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a
C. Section 1985 Claim (Count XI)
Plaintiff finally brings a claim against Defendants under
A. Legal Standard
(1) a conspiracy (2) for the purpose of depriving a person or class of persons of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff‘s person or property, or a deprivation of a right or privilege of a citizen of the United States.
K.D. ex rel. Duncan v. White Plains Sch. Dist., 921 F. Supp. 2d 197, 208 (S.D.N.Y. 2013) (quoting Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999)). “A conspiracy ‘need not be shown by proof of an explicit agreement but can be established by showing that the “parties have a tacit understanding to carry out the prohibited conduct.“‘” Thomas, 165 F.3d at 146 (quoting LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 427 (2d Cir. 1995)).
B. Analysis
Salesforce argues that any
Salesforce (and the City Defendants in their reply) argue that Plaintiff is attempting to impermissibly wedge a Title VII claim into a
VI. Leave to Amend
Plaintiff seeks leave to amend the SAC should the Court find any deficiencies of pleading. Pl. City Opp. at 4; Pl. Salesforce Opp. at 1. Salesforce argues that further leave to amend should be denied as futile, see Salesforce Br. at 17, while the City asks that the SAC be dismissed with prejudice, Dkt. 53 at 1. The Court will grant Plaintiff‘s request for leave to amend.
Salesforce argues that granting Plaintiff further leave to amend would be futile, since she has already amended her complaint twice and has not stated a claim against Salesforce. See Salesforce Br. at 17. But the Court notes that each of these amendments were without the benefit of a ruling from this Court. See Dkts. 20, 43, 45. “While Plaintiff has already amended [her] complaint twice, the Second Circuit is ‘particularly skeptical of denials of requests to amend when a plaintiff did not previously have a district court‘s ruling on a relevant issue’ because ‘without the benefit of a ruling, many a plaintiff will not see the necessity of amendment or be in a position to weigh the practicality and possible means of curing specific deficiencies.‘” Mitchell v. Planned Parenthood of Greater N.Y., Inc., No. 23-cv-01932 (JLR), 2024 WL 3849192, at *23 (S.D.N.Y. Aug. 16, 2024) (quoting Attestor Value Master Fund v. Republic of Argentina, 940 F.3d 825, 833 (2d Cir. 2019) (per curiam)).
The Court grants Plaintiff leave to amend within 28 days of the date of this Opinion and Order. The Court has no reason to conclude that Plaintiff has unduly delayed or acted in bad faith, that granting leave to amend would unduly prejudice Defendants, or that granting leave to amend would necessarily be futile.
CONCLUSION
For the foregoing reasons, the Court GRANTS Salesforce‘s motion to dismiss all claims against it set forth in Counts III, IV, IX, X, XI, XII, XIII, XIV, and XV. The Court further GRANTS the City‘s motion to dismiss the entire SAC. Plaintiff may file a Third Amended Complaint by January 15, 2025. If no amended complaint is filed by that date, the Court will direct that judgment be entered in favor of Defendants and close the case. The Clerk of Court is respectfully directed to terminate the motions at Dkts. 53 and 65.
Dated: December 17, 2024
New York, New York
SO ORDERED.
JENNIFER L. ROCHON
United States District Judge