Broecker v. New York City Department of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------X

Nicole BROECKER,

et al,

Plaintiffs,

MEMORANDUM AND ORDER

- against - 21-CV-6387 (KAM)(RLM)

New York City Department of Education,

City of New York, Meisha Porter, in her

official and individual capacities, United

Federation of Teachers, Local 2, American

Federation of Teachers, AFL-CIO, Michael

Mulgrew, in his official and individual

capacities, John Doe #1-10, in their

official and individual capacities, and

Jane Doe #1-10 in their official and

individual capacities,

Defendants.

-----------------------------------X

MATSUMOTO, United States District Judge:

The 83 named Plaintiffs are individuals (collectively

“Plaintiffs”) who have not received at least a first dose of a

COVID-19 vaccine and are employees at schools operated by the New

York City Department of Education (“NYC DOE”).1 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”), and

Michael Mulgrew, President of the UFT (collectively

1 Named Plaintiffs include a tenured principal, an assistant principal, tenured

teachers, paraprofessionals, an education administrator, a speech language

pathologist, a social worker, a parent coordinator, a guidance counselor, a

school counselor, and a secretary. (ECF No. 1, Compl., at pp. 14-15.)

“Defendants”). 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 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. Defendant UFT is a labor

organization through which certain named Plaintiffs are covered

by a collective bargaining agreement (“CBA”) with the NYC DOE.

Plaintiffs allege three categories of claims in their

Complaint. First, they allege that the Order violates their right

to procedural due process under the Due Process Clause of the

Fourteenth Amendment because Plaintiffs have a property interest

in their pay. (ECF No. 2-10, Pl. Mem., at p. 1.) Second,

Plaintiffs allege that the Vaccine Mandate violates their

statutory and contractual rights, as Plaintiffs have a right to

have charges proffered against them and have a hearing before

“discipline” is imposed pursuant to N.Y. Education Law § 3020-1,

or N.Y. Civil Service Law § 75, or the applicable CBA. (ECF No.

2-10, Pl. Mem., at pp. 1-2.) Third, Plaintiffs allege collusion

and aiding and abetting under 42 U.S.C. § 1983 against the UFT,

Mulgrew, Porter, and unnamed Jane and John Doe Defendants. (ECF

No. 1, Compl. pp. 23-28.)

Plaintiffs seek a preliminary injunction to enjoin and

restrain (1) the Defendants from withholding pay from any and all

tenured principals, assistant principals, and teachers who have

failed to take a COVID-19 vaccine; (2) the Defendants from

withholding pay from any and all civil service employees entitled

to N.Y. Civil Service Law § 75 rights who have failed to take a

COVID-19 vaccine; (3) the Defendants from withholding pay from

any and all employees of the NYC DOE who have failed to take a

COVID-19 vaccine and who, as a term of their union’s collective

bargaining agreement with the NYC DOE, allegedly cannot be

terminated or disciplined without a hearing; (4) the NYC DOE from

disciplining, including but not limited to terminating, tenured

principals, assistant principals, and teachers who have failed to

take a COVID-19 vaccine without proffering charges and

specifications and granting the tenured employees a hearing on

the charges; (5) the NYC DOE from disciplining, including but not

limited to terminating, any and all civil service employees

entitled to N.Y. Civil Service Law § 75 rights who have failed to

take a COVID-19 vaccine, without proffering charges and

specifications; and, (6) the NYC DOE from disciplining, including

but not limited to terminating any and all employees of the NYC

DOE who have failed to take a COVID-19 vaccine and who, as a term

of their union’s collective bargaining agreement with the NYC

DOE, allegedly cannot be terminated or disciplined without

proffering charges and specifications and a hearing. (ECF No. 2,

Pl. Proposed Order to Show Cause, at pp. 2-4.)

For the reasons stated below, Plaintiffs’ motion for

injunctive relief is DENIED.

BACKGROUND

I. Factual Background

The COVID-19 pandemic and its devastating, lasting

effects on society are well known. The City of New York has

enacted a series of COVID-19 related safety mandates and

protocols as part of the City’s effort to slow and contain the

spread of the novel coronavirus. On August 24, 2021, prior to

the commencement of the New York City school year, the

Commissioner of the New York City Department of Health and Mental

Hygiene (“DOHMH”), issued an order requiring all NYC DOE

employees to show proof of compliance with the Vaccine Mandate,

meaning receipt of at least one dose of vaccination against

COVID-19 by September 27, 2021. (See ECF No. 18, Def. NYC DOE

Mem. in Opp. at p. 1.)

On September 10, 2021, the UFT filed a Declaration of

Impasse with the Public Employment Relations Board (“PERB”) over

the impact of the Vaccination Mandate. (See ECF No. 19-1,

O’Connor Decl., Ex. A (September 10, 2021 Arbitration Award

Decision in Board of Education of the City School District of the

City of New York and the UFT (hereafter “Impact Arbitration

Award”), at 4).)

Following expedited mediation and discussions between

the NYC DOE, the City of New York, and the UFT, the appointed

arbitrator, on September 10, 2021, the arbitrator issued a

binding arbitration decision (“Impact Arbitration Award”), which

established in relevant part (1) a processes for religious and

medical exemptions and accommodation requests, namely, processes

for staff to apply for, and appeal from adverse determinations

for medical and religious accommodations to an independent

arbitration panel (and the ability to remain on the DOE payroll

and continued medical benefits coverage while such applications

and appeals are pending); (2) options to voluntarily separate

from DOE service with certain compensation benefits, or to elect

for an extended non-disciplinary leave without pay (“LWOP”), all

while maintaining health benefits until September 5, 2022; and

(3) that as of December 1, 2021, the DOE may seek to unilaterally

separate employees who have not complied with the Vaccination

Mandate, or who have not obtained an approved exemption or

accommodation and have not opted for either separation option.

(See ECF No. 19-1, Impact Arbitration Award at pp. 6-18; ECF No.

18, Def. NYC DOE Opp. Mem. at p. 5; ECF No. 20, Def. UFT Opp.

Mem., at p. 3.) The Impact Arbitration Award further provides

that employees extending their LWOP period to September 5, 2022,

may return immediately to their positions at NYC DOE schools upon

demonstrating compliance with the Vaccination Mandate. (Id.) As

to separation of service, the Impact Arbitration Award restricted

the NYC DOE from seeking to separate DOE employees on LWOP due to

non-compliance with the Vaccination Mandate, prior to December 1,

2021. (See ECF No. 19-1, Impact Arbitration Award at pp. 16-18.)

Under the terms of the Impact Arbitration Award, on December 1,

2021, the separation restriction on the NYC DOE will be lifted,

and the NYC DOE is authorized as of that date to seek the

termination of noncompliant employees through existing

procedures. (ECF No. 19-1, Impact Arbitration Award at pp. 17-

18; ECF No. 18, Def. NYC DOE Opp. Mem. at p. 5; ECF No. 20, Def.

UFT Opp. Mem., at p. 3.) Finally, and importantly, the Impact

Arbitration Award states that the processes contained in the text

of the Impact Arbitration Award for NYC DOE employees challenging

the Vaccination Mandate or seeking exemptions,

[S]hall constitute the exclusive and complete

administrative processes for the review and

determination of requests for religious and

medical exemptions to the mandatory

vaccination policy and accommodation requests

where the requested accommodation is the

employee not appear at school. The process

shall be deemed complete and final upon the

issuance of an appeal decision. Should either

party have reason to believe the process set

forth, herein, is not being implemented in

good faith, it may bring a claim directly to

SAMS for expedited resolution.

(ECF No. 19-1, Impact Arbitration Award at p. 13.) The UFT-

specific Impact Arbitration Award covers the majority, but not

all, of named Plaintiffs. (ECF No. 18, Def. NYC DOE Opp. Mem. at

p. 6.) The UFT notified its members of the Impact Arbitration

Award on September 10, 2021, by circulating the Award and a

“plain-language” explanation to UFT members. (ECF No. 20, Def.

UFT Opp. Mem. at p. 13.)

Following the issuance of the September 10, 2021,

Impact Arbitration Award, the City’s Office of Labor Relations

engaged in impact bargaining with the remaining unions

representing NYC DOE employees, including the Council of

Supervisors and Administrators (“CSA”), which represents NYC DOE

principals and assistant principals, and District Council 37 (“DC

37”), which represents many school-based employees such as school

aides, school food workers and Parent Coordinators. (Id.;

O’Connor Decl. at Ex. B, September 15, 2021, Arbitration Award

Decision in Board of Education of the City School District of the

City of New York and the CSA.) On September 15, 2021, an

arbitration decision in the matter of the City and the CSA was

issued that mirrored the Impact Arbitration Award, and on October

3, 2021, the City and the DC 37 reached an agreement that also

mirrors the Impact Arbitration Award. (O’Connor Decl. at C,

Memorandum of Agreement DC 37, City of New York, and the Board of

Education of the City School District for the City of New York,

dated October 3, 2021.)2 This, all parties were subject to

similar terms regarding the Vaccine Mandate procedures.

Plaintiffs were notified on October 2, 2021, that lack

of compliance with the Vaccination Mandate would result in

placement on LWOP as of October 4, 2021, and that NYC DOE would

seek to separate noncompliant employees as of December 1, 2021 if

they did not opt to extend their LWOP status and remained out of

compliance with the Vaccination Mandate. (See ECF No. 1-1, Ex.

A, Oct. 2, 2021, Email from NYC DOE.)

Plaintiffs filed the Complaint in this action on

November 17, 2021, 51 days after the September 27, 2021, deadline

for demonstrating compliance with the Vaccine Mandate, and 44

days after the October 4, 2021. (ECF No. 1, Compl.) As of the

date of Defendants’ responses on November 19, 2021, seven of the

named Plaintiffs had availed themselves of the accommodation

request process, and decisions under the Impact Arbitration Award

have been issued in connection with accommodation requests

(unless withdrawn), made by Plaintiffs Porcello (who withdrew her

request), Amoura, Quash, Dixno, Ruscelli, Lam and Christopoulos.

(ECF No. 19-6, Ex. F.) Plaintiffs’ counsel represented to the

2 Though not all named Plaintiffs are members of the UFT, Plaintiffs have only

named the UFT as a Defendant. The Court will restrict its analysis to the

specific claims brought against the UFT, though the Court will incorporate

into its discussion infra that the Impact Arbitration Award reached between

the UFT and the Board of Education of the City School District for the City of

New York “mirrors” the agreements reached between the Board of Education of

the City School District for the City of New York and the CSA and DC 37.

Court during the November 23, 2021, show cause hearing that to

date, no other Plaintiffs have availed themselves of the

processes for seeking accommodations, and no Plaintiffs have

received a COVID-19 vaccination.

II. Procedural Background

Though unrelated to the proceedings currently before

the Court, the instant action is part of a larger body of

litigation related to COVID-19 vaccine mandates in New York.

Specifically, the NYC DOE’s Vaccination Mandate has been the

subject of several legal challenges, unsuccessful thus far,

brought in state and federal courts by plaintiffs seeking to

enjoin the enforcement of the Vaccination Mandate. See, e.g.,

Maniscalco v. New York City Dep’t of Educ., No. 21-CV-5055 (BMC),

2021 WL 4344267 (E.D.N.Y. Sept. 23, 2021) (injunction denied)

aff’d, No. 21-2343, 2021 WL 4814767 (2d Cir. Oct. 15, 2021); Kane

v. de Blasio, No. 21-CV-7863 (VEC) (injunction denied), 2021 WL

5037401 (S.D.N.Y. Oct. 12, 2021); Keil v. The City of New York,

et al., 21-cv-8773 (S.D.N.Y.)(VEC) (injunction denied); New York

City Municipal Labor Comm. (“MLC”), et al. v. City of New York,

et al., Index No. 158368/2021 (Sup. Ct. N.Y. Cnty. Sep. 2021)

(injunction denied). The courts in Maniscalco, Kane, Keil, and

MLC, denied the plaintiffs’ motions for temporary restraining

orders and/or preliminary injunctions finding, in relevant part,

a lack of likelihood of success on the merits. See id. The

Second Circuit also recently upheld a New York State vaccine

mandate in the context of healthcare employees. See We The

Patriots USA, Inc. v. Hochul, No. 21-2179, 2021 WL 5121983 (2d

Cir. Nov. 4, 2021), opinion clarified, No. 21-2179, 2021 WL

5276624 (2d Cir. Nov. 12, 2021). It is against this backdrop of

recent caselaw that Plaintiffs have chosen to file their

Complaint, forty-four days after Plaintiffs’ placement on LWOP

status. (ECF No. 2, Pl. Emergency Mot.).

Plaintiffs filed their class action Complaint, on their

own behalf and on behalf of all persons similarly situated, on

November 17, 2021. (ECF No. 1, Compl., at ¶¶ 100-102.) On the

same date, Plaintiffs filed an Emergency Motion for Preliminary

Injunction and Temporary Restraining Order. (ECF No. 2, Pl.

Motion for Preliminary Injunction and Temporary Restraining Order

(“PI/TRO”).) The Court, also on November 17, 2021, issued an

Order to Show Cause, ordering: (1) personal service on all named

Defendants to be made on or before 9:30 am, Thursday, November

18, 2021; (2) Defendants to respond to the Order to Show Cause

via ECF by Friday, November 19, 2021, at 3:00 pm; and, (3)

counsel for the named Plaintiffs and Defendants to appear for a

hearing before the Court, with their clients with the opportunity

to present testimony, on Tuesday, November 23, 2021, at 12:00 pm.

(ECF No. 11, Nov. 17, 2021, Order to Show Cause (“OSC”).)

All named Defendants filed papers in opposition to

Plaintiffs’ motion for injunctive relief on November 19, 2021.

Defendants NYC DOE and Ms. Porter filed a memorandum of law in

opposition, the Declaration of Andrea O’Connor (“O’Connor

Decl.”), and attached exhibits. (ECF No. 18, Def. NYC DOE Opp.

Mem.; ECF No. 19, O’Connor Decl.) Defendant UFT filed a

memorandum of law in opposition, the Declaration of Alan M.

Klinger (“Klinger Decl.”), the Declaration of Beth Norton

(“Norton Decl.”), and attached exhibits. (ECF No. 20, Def. UFT

Opp. Mem.; ECF No. 21, Klinger Decl.; ECF No. 22, Norton Decl.)

The parties appeared before the Court on November 23,

2021, for a show cause hearing. During the show cause hearing,

all parties requested supplemental briefing as to the specific

issue of due process surrounding the forthcoming separation of

nonexempt, unvaccinated Plaintiffs by the NYC DOE on and after

December 1, 2021. Specifically, the parties requested further

briefing to address whether a vaccination requirement constitutes

a legitimate condition of employment, and what, if any, due

process requirements are implicated. Given the parties’ request,

the Court will limit its analysis and decision as to the

processes and procedures currently in the record governing the

Plaintiffs’ current LWOP period prior to separation, from October

4, 2021, up to and including November 30, 2021.3

LEGAL STANDARD

The party seeking the preliminary injunction must

establish “that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of 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, the traditional preliminary injunction analysis

is complicated by three distinctions given the nature of the

relief Plaintiffs seek. First, Plaintiffs seek a mandatory

injunction against a government action taken in the public

interest, and so must show both irreparable harm and a likelihood

of success on the merits. See 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

3 Plaintiffs sought expedited relief, and submitted matters for the Court’s

expedited consideration. (ECF No. 2, Pl. Emergency Mot.) Accordingly, the

Court allowed Defendants to respond on an expedited basis. During the November

23, 2021, show cause hearing, the Court advised the parties it would decide

the instant application for injunctive relief based on the parties’ filings as

of the date of the hearing, November 23, 2021. Consequently, Plaintiffs’

belated submission (ECF No. 28) and Defendants’ response (ECF No. 29) will not

be entertained by this Court as part of this decision. In any event, even if

the Court were to consider the belated submissions, the contents of the

submissions would not impact the decision of the Court.

regulatory scheme,’ a plaintiff must show ‘irreparable harm in

the absence of an injunction and a likelihood of success on the

merits.’”) (internal citation omitted) (emphasis added).

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 injunctive relief

are required to meet the higher standard of a mandatory

injunction 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 would prevail on

the merits. Tom Doherty Assocs. v. Saban Entm’t, Inc., 60 F.3d

27, *33-34 (2d Cir. 1995). Here, Plaintiffs are seeking, in

relevant part, to be restored to NYC DOE payroll, after having

been placed on LWOP well over a month ago, for their failure to

comply with the Vaccination Mandate. 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. v. Saban Entm’t, Inc., 60 F.3d

27 (2d Cir. 1995); Doninger v. Niehoff, 527 F.3d 41, *47 (2d Cir.

2008).

DISCUSSION4

As a threshold matter, the Court notes that Plaintiffs

failed completely in their papers to address the existence and

effect of the Impact Arbitration Award reached between the UFT,

the Council of Supervisors and Administrators, and District

Counsel 37, which provides critical context for evaluating the

Plaintiffs’ request for preliminary injunction. The Court will

consider and incorporate the September 10, 2021, Impact

Arbitration Award, raised by Defendants, into its analysis.

I. Preliminary Injunction

A. Likelihood of Success on the Merits

Plaintiffs failed, in their motion papers and at oral

argument during the November 23, 2021 show cause hearing, to

establish a “clear” or “substantial” likelihood of success on the

4 Plaintiffs’ only potential reference to their Section 1983 claims regarding

collusion and aiding and abetting in their memorandum of law is as follows:

“the Plaintiffs have a high likelihood of success on the merits of their 42

U.S.C. 1983 causes of action [] and therefore should be granted the relief

they request.” (ECF No. 2-10, Pl. Mem., pp. 13, 18.) Plaintiffs do not cite to

any case law in support of this argument, and the Court will not address these

allegations as part of its preliminary injunction analysis.

merits on any of their claims. See Tom Doherty Assocs., 60 F.3d

27 (2d Cir. 1995); Doninger, 527 F.3d at *47 (2d Cir. 2008).

First, it is dubious whether Plaintiffs have standing

to challenge the terms of the Impact Arbitration Award, and

similar awards and agreements, because their respective union

representatives engaged on their behalf with the NYC DOE, which

process resulted in the arbitration awards and agreement. See

Fleischer v. Barnard Coll., No. 20-4213, 2021 WL 5365581, at *4,

n. 1 (2d Cir. Nov. 18, 2021) (because a union represented the

adjunct professor plaintiff in the arbitration against the

defendant, her employer college, plaintiff did not have standing

to challenge the arbitration proceeding directly under the

Federal Arbitration Act; she could only challenge the arbitration

through her claim against the union for breach of its duty of

fair representation.) (citing Katir v. Columbia Univ., 15 F.3d

23, 24–25 (2d Cir. 1994) (“[A]n individual employee represented

by a union generally does not have standing to challenge an

arbitration proceeding to which the union and the employer were

the only parties.”)). Plaintiffs have brought this action

principally challenging their placement on LWOP, and the

possibility of their separation from employment by the NYC DOE on

or after December 1, 2021, both of which were the result of

legitimate arbitrations between the City and the various unions

representing the various categories of Plaintiffs. As Defendant

UFT correctly argues, and as counsel for Defendant UFT and

Defendant NYC DOE represented during the November 23, 2021, show

cause hearing, Plaintiffs’ claims fail to account for the fact

that the binding arbitration award has become part of the

collective bargaining agreement. (ECF No. 20, Def. UFT Opp.

Mem., at p. 4.) Defendants’ counsel confirmed to the Court

during the November 23, 2021, show cause hearing that the

arbitration between the UFT and the Board of Education of the

City School District for the City of New York was a binding

arbitration process, and that the resulting Impact Arbitration

Award altered the contractual terms of the CBA. Accordingly,

Plaintiffs who are members of the UFT (and presumably the CSA and

DC 37) have been placed on LWOP consistent with their CBAs and

the incorporated arbitration awards. (ECF No. 20, Def. UFT Opp.

Mem., at p. 4.)

It is undisputed that Plaintiffs were not a party to

the arbitration and negotiations that resulted in the Impact

Arbitration Award and accordingly, their standing to challenge

the Award is in doubt. Even assuming that Plaintiffs do have

standing and can appropriately challenge the terms of the Impact

Arbitration Award which enables the NYC DOE to seek their

separation from employment as of December 1, 2021, Plaintiffs

still have not established a clear or substantial likelihood of

success on the merits on their claims.

The NYC DOE, in compliance with the Vaccination Mandate

and for compelling public health reasons, cannot permit

noncompliant, unvaccinated employees, absent exemption or

accommodation, to work at NYC DOE schools, and the NYC DOE has

acted pursuant to the terms of the Impact Arbitration Award for

placing noncompliant, nonexempt employees on LWOP.5 The Impact

Arbitration Award clearly explains the “exclusive” processes

established for exemptions and accommodation requests and the

appeals process. (ECF No. 19-1, Impact Arbitration Award, at pp.

6-13.) The Impact Arbitration Award also clearly provides the

procedures for leave, including procedures for extending LWOP,

returning from LWOP, and a section on pregnancy and parental

leave. (Id. at pp. 13-16.) Finally, the Impact Arbitration

Award describes the options for separation, including on the part

of the employee as well as on the part of the NYC DOE. (Id. at

pp. 16-18.) Thus, the Impact Arbitration Award provides adequate

processes for pre-deprivation notice and hearing.

5 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 ineligibility for

employment. See e.g. Matter of Brown v. Bd. of Educ. of City Sch. Dist. of

City of N.Y., 2009 NY Slip Op 31687(U), ¶ 6 (Sup. Ct., N.Y. Co. 2009), citing

O’Connor v. Board of Education, 48 A.D.3d 1254 (4th Dept. 2008) lv. denied 10

N.Y.3d 928 (2008) (teacher’s termination due to failure to maintain residency

was not a disciplinary matter and therefore was outside the scope of § 3020-

a.). As noted supra, the parties have requested, and the Court has granted

leave for, supplemental briefing as to whether noncompliant NYC DOE employees

facing separation are being “disciplined” or subject to a legitimate condition

of employment, and thus the Court will not reach that issue here.

Plaintiffs will be afforded the processes required by

the applicable CBA and the Impact Arbitration Award when and if

the NYC DOE seeks separation, undermining Plaintiffs’ arguments

that they will be terminated in violation of their constitutional

right to due process without a post-deprivation hearing. The

Court does not disagree that Plaintiffs, as public employees

under the NYC DOE, have a protected property interest in their

continued employment, and it appears neither do Defendants. See

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.

Ct. 1487, 1491 (1985) (property interests are not created by the

Constitution, “they are created and their dimensions are defined

by existing rules or understandings that stem from an independent

source such as state law....”) (internal citations omitted).

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 looks to whether

the process they have been afforded upon LWOP placement and upon

separation is constitutionally adequate. To determine whether

process is 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).

Based on the record before the Court, the Court

considers that both the pre-deprivation and post-deprivation

processes currently afforded to Plaintiffs were and are

constitutionally adequate. See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. at 547 n. 12, 105 S.Ct. 1487 (1985) (“[T]he

existence of post-termination procedures is relevant to the

necessary scope of pretermination procedures.”). The pre-

deprivation and post-deprivation proceedings articulated in the

Impact Arbitration Award have been incorporated into the

Plaintiffs’ collective bargaining agreements. (See ECF No. 20,

Def. UFT Opp. Mem. at p. 4.) 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, 105 S.Ct. 1487).

Plaintiffs received ample notice of (1) the Vaccination Mandate,

(2) their ability to seek religious and medical exemptions and

appeals, (3) their placement on LWOP if they continued to be

noncompliant with the terms of the Vaccination Mandate, and (4)

their options and opportunity to respond. The widely publicized

Vaccination Mandate was implemented on August 24, 2021. In the

case of the Plaintiffs with UFT membership, these Plaintiffs have

had notice of the LWOP and potential separation processes and

procedures since September 10, 2021, the date of the issuance of

the Impact Arbitration Award. (ECF No. 20, Def. UFT Opp. Mem. at

p. 13.) Similarly, the CSA member employees had notice as of

September 15, 2021, and DC 37 member employees had notice as of

October 3, 2021. (ECF No. 18, Def. NYC DOE Opp. Mem. at p. 7.)

Plaintiffs were then also notified on October 2, 2021, that if

they were not in compliance with the Vaccination Mandate, they

would be placed on LWOP as of October 4, 2021, and that NYC DOE

would seek to separate them as of December 1, 2021, if they did

not comply with the vaccine mandate or extend their LWOP status.

(See ECF No. 1-1, Ex. A, Oct. 2, 2021, Email from NYC DOE.)

An employee’s right to be provided with an opportunity

to address concerns before a final decision is made can be

“accomplished through informal procedures; no formal hearing [is]

required.” Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775,

786 (2d Cir. 1991). Though Plaintiffs note that the UFT was not

accepting grievances related to the Vaccination Mandate, the UFT

advised members inquiring about grievances that procedures

regarding unvaccinated employees were governed by the binding

Impact Arbitration Award which altered their CBA, 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).

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).

Further, the Impact Arbitration Award provides for an

expedited review process for exemptions and accommodations,

providing an opportunity to be heard for Plaintiffs challenging

their placement on LWOP. As of November 23, 2021, only seven

named Plaintiffs have availed themselves of the processes

available to them for seeking accommodations or exemptions. (See

ECF No. 18, Def. NYC DOE Opp. Mem. at p. 24 (“Notably, Plaintiffs

Porcello, Amoura, Quash, Dixno, Ruscelli, Lam and Christopoulos

each availed themselves of the process available to them to seek

an accommodation with respect to the DOE Vaccination Mandate.”).)

As counsel for Defendant NYC DOE confirmed to the Court during

the November 23, 2021, show cause hearing, the remaining seventy-

six named Plaintiffs have until November 30, 2021, to avail

themselves of the procedures for requesting accommodations and

exemptions, and opting to extend their LWOP status through

September 5, 2022. Finally, Plaintiffs, after receiving multiple

notices regarding the Vaccination Mandate and after being

notified of the applicable dates, procedures, and consequences

regarding continued noncompliance with the Vaccination Mandate,

could still have sought relief through an Article 78 proceeding

in New York State Supreme Court. The Second Circuit has advised

that the Article 78 proceeding can provide a sufficient post-

deprivation remedy. See Hellenic Am. Neighborhood Action Comm.

v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996) (“an

Article 78 proceeding is a perfectly adequate post-deprivation

remedy.”).

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 Award

procedures, which provide grievance and arbitration procedures,

and undisturbed, well-established state court procedures.

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 is compelled to note

that the harms resulting from noncompliance with the NYC DOE

Vaccination Mandate identified by Plaintiff are by no means

irreparable. Plaintiffs’ articulated harms are: loss of income

while on LWOP, and their possible separation from NYC DOE, which

they allege will occur without adequate processes. These

pecuniary harms are neither irreparable nor sufficient to justify

the presently requested injunctive relief.

To be sure, the Court does not dispute that a loss of

income is a hardship. The loss of one’s wages, particularly for

those with financial commitments and dependents, is a real,

tangible harm. In order to demonstrate an entitlement to

injunctive relief, Plaintiffs may not simply identify a general

loss. Instead, Plaintiffs must identify a harm for which

available legal remedies and monetary damages would be

inadequate. In particular, 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, 112 S.Ct. 2031, 119 L.Ed.2d

157 (1992); Metro. Opera Ass’n, Inc. v. Local 100, Hotel

Employees & Rest. Employees Int’l Union, 239 F.3d 172, 177 (2d

Cir. 2001)).

Similarly, 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 loss of income.

Consequently, injunctive relief is not warranted.

Further, Plaintiffs’ lengthy delay in seeking to enjoin

the NYC DOE’s intent to seek separation of noncompliant and

nonexempt employees on December 1, 2021—an occurrence that was

entirely known to Plaintiffs at least by October 2, 2021, if not

earlier—greatly undermines the strength of Plaintiffs’

“emergency” motion for preliminary injunction. There was a delay

of forty-four days between the date of Plaintiffs’ actual

placement on LWOP status and the filing of Plaintiffs’ instant

request for preliminary injunction. (ECF No. 2, Pl. Emergency

Mot.) Plaintiffs’ inaction does not convey a looming,

irreparable harm, and does not invoke the “urgent need for speedy

action to protect the plaintiffs’ rights[,]” as is typical when

injunctions are sought on an expedited basis. Citibank, N.A. v.

Citytrust, 756 F.2d 273, 276 (2d Cir. 1985).

C. Balance of the Equities and D. The Public Interest

The Court finds that both the balance of equities and

the public interest disfavor the injunctive relief requested by

Plaintiffs. As the Court has noted supra, the loss of income

while on LWOP status undoubtedly presents a hardship to the

Plaintiffs. Plaintiffs face this continued hardship if they

continue to refuse to comply with the Vaccination Mandate. 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, and the public

interest weigh in favor of denying the preliminary injunction.

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, 958 N.E.2d

897 (2011). There is an interest in providing in-person

schooling for students, as remote schooling can have negative

impacts on education.6 There is also an obvious, significant

governmental interest in preventing transmission of the COVID-19

virus and protecting students, thousands of whom remain

ineligible for a COVID-19 vaccine, as well as NYC DOE teaching

professionals and staff, and all related communities. As Judge

Cogan of this District recently noted in 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) “[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.” 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 test positive

or die from COVID-19.”7 Even despite the widespread

implementation of vaccinations and booster shots, the United

States has lost more lives in the year 2021 than in 2020, which

6 Remote schooling during the 2020-21 academic year contributed to “highly

significant” learning loss, according to a new study published by the National

Bureau of Economic Research. See Clare Halloran, Rebecca Jack, James C. Okun,

Emily Oster, Pandemic Schooling Mode and Student Test Scores: Evidence from US

States, (National Bureau of Economic Research Working Paper, Paper No. 29497,

Nov. 2021), https://www.nber.org/papers/w29497.

7 Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES (updated Nov.

23, 2021), https://www.nytimes.com/interactive/2021/us/covid-cases.html.

experts attribute at least in part to “lower-than-needed

vaccination rates,” and “the relaxation of everyday precautions,

like masks and social distancing, and the rise of the highly

contagious Delta variant.”8 Based on the evidence available,

there remains an urgent, compelling justification for the

enforcement of the state- and city-mandated restrictions and

policies enacted and designed to protect the most vulnerable

among us from the COVID-19 pandemic.

Ultimately, “it is up to local government, ‘not the

courts, to balance the competing public health and business

interests[,]’” and here, the New York City government and NYC DOE

have done so in issuing and enforcing the COVID-19 Vaccination

Mandate for employees of the Department of Education.

Maniscalco, 2021 WL 4344267, at *4.

CONCLUSION

Accordingly, Plaintiffs’ motion for a preliminary

injunction and temporary restraining order is DENIED.

Further, the Court finds that Plaintiffs’ have not

demonstrated that they have standing to challenge the terms of

the Impact Arbitration Award between the NYC DOE and the UFT in

federal court. Therefore, the Plaintiffs are ORDERED TO SHOW

CAUSE by December 15, 2021, why this action should not be

8 Covid Live Updates: U.S. Records More Deaths This Year Than in 2020, N.Y.

TIMES (updated Nov. 23, 2021),

https://www.nytimes.com/live/2021/11/23/world/covid-vaccine-boosters-mandates.

dismissed for lack of standing.

SO ORDERED.

________ _/s/______________

Kiyo A. Matsumoto

United States District Judge

Dated: Brooklyn, New York

November 24, 2021