Broecker v. New York City Department of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Nicole BROECKER, et al,

Plaintiff,

MEMORANDUM & ORDER

v.

21-CV-6387(KAM)(LRM)

New York City Department of Education,

et al,

Defendants.

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Kiyo A. MATSUMOTO, United States District Judge:

The 93 named Plaintiffs in the Amended Complaint

(collectively “Plaintiffs”), filed on January 10, 2022 (ECF No.

47, Am. Compl.), are employees of the New York City Department

of Education (“NYC DOE”) and are members of various unions named

as Union Defendants.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 (collectively “UFT”); Michael Mulgrew,

President of the UFT; Counsel of Supervisors and Administrators

(“CSA”), Mark Cannizzaro; District Council 37, AFSCME AFL-CIO,

Local 372 (“DC 37 Local 372”); Henry Garrido; Shaun D. Francois

1 In two extensive decisions (ECF Nos. 33; 89), this Court denied both of

Plaintiffs’ motions for a preliminary injunction after considering the

parties’ submissions and conducting hearings. Factual findings set forth in

the Court’s decisions were based on the Parties’ evidentiary submissions and

are noted where relevant. The Court notes that the Plaintiffs submitted

their original complaint as an exhibit in their first motion for preliminary

injunction (ECF No. 2-8, Ex. B, Complaint), and submitted the operative

Amended Complaint as an exhibit in their second motion for preliminary

injunction (ECF No. 76-12, Ex. F, Amended Complaint).

I; District Council 37, AFSCME AFL-CIO, Local 1251 (“DC 37 Local

1251”) (together with DC 37 Local 372, “DC 37”); Francine

Francis; Martin F. Scheinman, Scheinman Arbitration and

Mediation Services, and Scheinman Arbitration and Mediation

Services LLC (collectively, “Scheinman Defendants”)

(collectively, “Defendants”). Defendants UFT, CSA, and DC 37

(collectively, “Union Defendants”) are labor organizations

through which certain named Plaintiffs are covered by collective

bargaining agreements (“CBAs”) with the NYC DOE.

Defendants NYC DOE and the City of New York are

entities responsible for implementing and enforcing a COVID-19

vaccination mandate (the “Vaccination Mandate”) issued pursuant

to an Order from the New York City Commissioner of Health and

Mental Hygiene (“COH Order”) on August 24, 2021, requiring that

all NYC DOE employees receive at least a first dose of a COVID-

19 vaccination by September 27, 2021, in order to work at NYC

DOE schools. The Vaccination Mandate was revoked by the City of

New York on February 10, 2023 and is no longer in effect.2

An arbitrator, Defendant Scheinman, was appointed by

the New York State Public Employment Relations Board (“PERB”) to

2 See N.Y.C. Board of Health, Order Rescinding Orders Requiring COVID-19

Vaccination in Child Care and Early Intervention Programs, for Nonpublic

School Staff, and for Individuals Working in Certain Child Care Programs

(2023); Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998)

(“[A] district court may rely on matters of public record in deciding a

motion to dismiss under Rule 12(b)(6).”)

mediate the impasse in the negotiations between the Union

Defendants and the NYC DOE regarding the New York Commissioner

of Health’s COVID Vaccination Mandate and issued a binding

arbitration award (“Impact Arbitration Award”) that resolved the

impasse and prescribed procedures for the NYC DOE to implement

the Vaccination Mandate.3

At the time the Amended Complaint had been filed on

January 10, 2022, Plaintiffs had not received at least one dose

of the COVID-19 vaccine, and had been suspended without pay, at

least temporarily, by the DOE. (ECF No. 47, Am. Compl. ¶ 118.)

Plaintiffs allege that the implementation of the Vaccination

Mandate and subsequent consequences violated (a) their

procedural Due Process rights, under the Due Process Clause of

the Fourteenth Amendment, (b) their statutory rights to their

due process protections under N.Y. Education Law §§ 3020-1 and

3020-a (for tenured employees) or N.Y. Civil Service Law § 75

(for permanent employees) and (c) their contractual rights to

3 As noted by the Court in its November 24, 2021 Order, the Court found that

“the [initial] 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” and would be

consolidating and incorporating its findings regarding the three identical

agreements (“Impact Arbitration Awards” or “Awards”) in its November 24, 2021

Order. (ECF No. 33, Nov. 24, 2021 Order at 7, 8 n.2.)(quoting ECF No. 18,

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.)

The DOE’s Motion to Dismiss memorandum also states that all three agreements

are identical in all relevant aspects for purposes of this case, and the

Court agrees. (ECF No. 116, DOE Mot. to Dismiss at 5 n.1.)

their due process protections through the applicable collective

bargaining agreements (“CBA”). (ECF No. 47, Compl. ¶¶ 112,

119.) Plaintiffs also allege collusion and aiding and abetting

by the Defendants under 42. U.S.C. § 1983. (Id. ¶ 113.)

In this case, Plaintiffs have twice moved

unsuccessfully for a preliminary injunction and temporary

restraining order: Plaintiffs filed their First Motion for

Preliminary Injunction on November 17, 2021, and they filed

their Second Motion for Preliminary Injunction on February 8,

2022. (ECF Nos. 2, First Motion for Preliminary Injunction4; 76,

Second Motion for Preliminary Injunction5.) Central to both of

Plaintiffs’ motions for preliminary injunctions and their

Amended Complaint, is the Plaintiffs’ claim that Defendant NYC

DOE did not provide adequate procedural due process required by

the Constitution and thus, should be enjoined and restrained by

this Court from withholding pay or terminating the employment of

DOE employees who failed to comply with the Vaccination Mandate.

(ECF Nos. 2-10, First Motion for Preliminary Injunction Mem. at

4 The First Motion for Preliminary Injunction included an affirmation from

Plaintiffs’ counsel Austin Graff, Esq. (ECF No. 2-1), supporting declarations

from five Plaintiffs (ECF Nos. 2-2—6), and supporting exhibits (ECF No. 2-7—

10, Ex. A, Plaintiff Email; Ex. B, Complaint, Ex. C, Graff Letter.)

5 The Second Motion for Preliminary Injunction included an affirmation from

Plaintiffs’ counsel Austin Graff, Esq. (ECF No. 76-1), supporting

declarations from five of the forty-three Plaintiffs facing termination on

February 11, 2022 (ECF Nos. 76-2—6), and supporting exhibits (ECF No. 76-7—

12, Ex. A, Termination Notices; Ex. B, Health Screening Questionnaire; Ex. C,

Antibody Tests; Ex. D, PS I Love You Flyer; Ex. E, Indeed Post; Ex. F, the

Amended Complaint.)

1; 76-13, Second Motion for Preliminary Injunction Mem. at 2;

see generally Am. Compl. ¶ 442.) After providing the parties

with an opportunity to present evidence and submissions before,

during, and after two show cause injunction hearings,

Plaintiffs’ First Motion for Preliminary Injunction was denied

by this Court on November 24, 2021 (ECF No. 33), and Plaintiffs’

Second Motion for Preliminary Injunction was denied on February

11, 2022 (ECF No. 89). Before the Court are the Defendants’

motions to dismiss the Plaintiffs’ Amended Complaint.

For the reasons discussed below, Defendants’ motions

to dismiss are GRANTED.

BACKGROUND

The Court first reviews the factual and procedural

background of the Court’s November 24, 2021 Memorandum and Order

(“Nov. 24, 2021 Order”) and the Court’s February 11, 2022

Memorandum and Order (“Feb. 11, 2022 Order”). (ECF Nos. 33,

Nov. 24, 2021 Order; 89, Feb 11, 2022 Order.) The Court also

reviews the operative Amended Complaint, accepting as true, for

purposes of the Defendants’ 12(b)(6) motions, the factual

allegations in the Amended Complaint and drawing all reasonable

inferences in Plaintiffs’ favor. Melendez v. City of New York,

16 F.4th 992, 1010 (2d Cir. 2021). The Court, however, is “not

bound to accept as true a legal conclusion couched as a factual

allegation.” Drimal v. Tai, 786 F.3d 219, 223 (2d. Cir. 2015)

(internal quotation marks omitted); Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (“[T]he tenet that a court must accept as true

all of the allegations contained in [an amended] complaint is

inapplicable to legal conclusions.”).

Moreover, Plaintiffs attached the operative Amended

Complaint as an exhibit in their Second Motion for Preliminary

Injunction. (See ECF No. 76-12, Second Motion for Preliminary

Injunction, Ex. F, Am. Compl.) In any case, because “[i]n

deciding a motion for preliminary injunction, a court may

consider the entire record including affidavits and other

hearsay evidence,” as well as the operative complaint and

attached exhibits, the Court notes that in ruling on the

Plaintiff’s Second Motion for Preliminary Injunction, the Court

has previously reviewed and considered the Amended Complaint and

its exhibits in making its findings. Doe v. Franklin Square

Union Free Sch. Dist., 568 F. Supp. 3d 270, 282 (E.D.N.Y. 2021)

(quotation and citation omitted), appeal withdrawn, No. 21-2759,

2022 WL 1316221 (2d Cir. Mar. 17, 2022). The Court summarizes

the relevant facts below.

1. First Motion for Preliminary Injunction

The Court’s November 24, 2021 Order denied the

Plaintiffs’ November 17, 2021 First Motion for Preliminary

Injunction which sought to enjoin the NYC DOE from withholding

pay from or terminating tenured principals, assistant

principals, and teachers who failed to obtain a first dose of

the vaccine, apply for a religious or medical exemption, or

extend their leave without pay (“LWOP”) status while retaining

health benefits. (See ECF No. 33, Nov. 24, 2021 Order at 2-3.)

In the Court’s November 24, 2021 Order, the Court

found that the processes provided in the Impact Arbitration

Award, which was negotiated and established by the NYC DOE and

Union Defendants through the arbitration conducted by the

Scheinman Defendants, provided Plaintiffs with “constitutionally

adequate” pre- and post- deprivation processes. (Id. at 19.)

In their First Motion for Preliminary Injunction, Plaintiffs

failed to address the existence and effect of the Impact

Arbitration Award reached between the NYC DOE and Union

Defendants, which provided critical context for evaluating the

Plaintiffs’ first request for preliminary injunction and what

determining pre- and post- deprivation procedures were

negotiated and available to Plaintiffs. (Id. at 14.)

The Court’s November 24, 2021 Order also noted that

Plaintiffs did not have standing to challenge the terms of the

Impact Arbitration Awards, and similar awards and agreements,

finding that employees represented by a union generally do not

have standing to challenge an arbitration proceeding to which

the union and the employer were the only parties. (Id. at 15.)6

Nonetheless, the Court considered and concluded, on the record

before it, that the Impact Arbitration Award provided adequate

processes for pre- and post-deprivation notice and hearing.

(Id. at 17.) Specifically, the Court stated in its November 24,

2021 Order:

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.

The Impact Arbitration Award clearly explains

6 “First, it is dubious whether Plaintiffs have standing to challenge the

terms of the [Impact Arbitration Decision], 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.’)).”

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.

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). . .

. 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)[(collecting

cases)] . . . . 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 . . . . 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.”).

(Id. at 17-22)

2. The Operative Amended Complaint

On January 10, 2022, Plaintiffs filed the operative

Amended Complaint, naming additional parties and attaching new

exhibits.7 (ECF No. 47, Am. Compl.) The Amended Complaint that

the Court considers in deciding the Defendants’ instant motions

to dismiss does not allege new causes of action.

In their Amended Complaint, as discussed, infra,

Plaintiffs mischaracterize their requests for declaratory

judgment and injunctive relief as the First through Sixth

“causes of action.” Plaintiffs also assert a claim under 42

U.S.C. § 1983 against all Defendants for violating Plaintiffs’

procedural due process rights and conspiracy claims against the

individual Defendants for their roles in negotiating and

agreeing to the Impact Arbitration Awards. (Id. at ¶¶ 112-19,

135, 331-35, 33852, 367-88, 403-25.) Plaintiffs seek the

following relief, including declaratory judgment as to the NYC

DOE’s allegedly violative suspension of Plaintiffs without pay

and due process; declaratory judgment as to the allegedly

7 The Amended Complaint (ECF No. 47) includes the following exhibits: (ECF No.

47-1-47-14, Ex. A, About the UFT; Ex. B, What is CSA; Ex. C, Local 371

Webpage; Ex. D, Local 1251 Webpage; Ex. E, UFT Arbitration Award; Ex. F, CSA

Arbitration Award; Ex. G, Vaccination Mandate Order; Ex. H, NY Post Article;

Ex. I, Declaration of Impasse; Ex. J, PERB Appointment, Ex. K, Klinger Email;

Ex. L, Teachers CBA, Ex. M, DC 37 MOA, Ex. N, NYE DOE Release Form.)

illegal Arbitration Awards and agreements between the Defendant

unions and the NYC DOE; declaratory judgment as to the allegedly

coercive and void NYC DOE Release Forms signed by certain

Plaintiffs;8 collusion and aiding and abetting conspiracy claims

under Title 42 U.S.C. § 1983 against the NYC DOE, the Union

Defendants, and the Scheinman Arbitration and Mediation

defendants; and injunctive relief against the NYC DOE for the

alleged violation of Plaintiffs’ procedural due process rights.

(See generally, ECF No. 47, Am. Compl. ¶ 442.)

Accordingly, fundamental to the Court’s consideration

of Defendants’ motions to dismiss are the available processes

leading up to the termination of Plaintiffs’ employment by the

NYC DOE and whether those procedures satisfied Due Process. On

January 31, 2022, the NYC DOE notified employees who had failed

to receive a COVID-19 vaccine and also failed to either (1)

apply for and receive a medical or religious accommodation, or

(2) extend their LWOP status and continued medical benefits

until September 2022, that their employment would terminate on

8 The Court notes that in Plaintiffs’ opposition memorandum, they assert that

“none of the Defendants have sought to dismiss the Plaintiffs’ Fifth Cause of

Action” and that the Court should therefore not dismiss it. (ECF No. 126,

Pls. Opp’n Mem. at 22.) Defendant NYC DOE moved to dismiss Plaintiffs’

Amended Complaint in its entirety (ECF No. 116, DOE Mot. to Dismiss Mem. at

25) for the reasons discussed supra, the Court dismisses the Fifth Cause of

Action for a failure to state a claim.

February 11, 2022. (See ECF No. 76-7, Pls. Ex. A, Termination

Notices.)9

3. Second Motion for Preliminary Injunction

On February 8, 2022, Plaintiffs filed their Second

Motion for Preliminary Injunction, prompted by the DOE’s notices

of termination. (ECF No. 76, Second Motion for Preliminary

Injunction.) The parties fully briefed the preliminary

injunction by February 10, 2022. (ECF Nos. 79, NYC DOE Mem.; 79-

2, App. B.; 82, Pls. Reply Mem.)10 Plaintiffs sought to enjoin,

among other things, the NYC DOE from terminating their

employment without due process, and to be restored to employment

status with the NYC DOE, after having been placed on LWOP

several months before on October 4, 2021 and having received

notice of their impending termination on February 11, 2022 for

failure to comply with the Vaccination Mandate. (See ECF Nos.

76-13, Second Motion for Preliminary Injunction Mem.; 1-1, Am.

Compl. Ex. A, Oct. 2, 2021, Email from NYC DOE; 76-7, Pls. Ex.

A, Termination Notices.) Plaintiffs also sought to enjoin the

termination of their medical benefits on February 11, 2022,

9 Of the ninety-three Plaintiffs, forty-three received termination notices and

faced termination from their employment at the NYC DOE, effective on February

11, 2022. (ECF No. 76-1, Graff Aff., n.1.) Other Plaintiffs had already

signed NYC DOE Release Forms which extended their LWOP status to September

2022. (ECF No. 47, Am. Compl. ¶ 315.)

10 The Defendants memorandum also included Appendix A providing copies of two

relevant New York State Supreme Court Cases (ECF No. 79-2, App. A.), and

Appendix B, providing the Affirmation of Dr. Michelle E. Morse, M.D., M.P.H.,

the Chief Medical Officer of the Department of Health and Mental Hygiene of

the City of New York. (ECF No. 79-2, App. B.; ECF No. 82, Pls. Reply Mem.)

despite having been notified of their ability by November 30,

2021, to extend their LWOP status and medical benefits through

September 2022. (See ECF Nos. 76-13, Second Motion for

Preliminary Injunction Mem.; 33, Nov. 24, 2021 Order at 21-22.)

The Court denied Plaintiffs’ Second Motion for a

Preliminary Injunction in its February 11, 2022 Order (ECF No.

89), because the Court found, as it did in the November 24, 2021

Order, that pre- and post-deprivation processes Plaintiffs were

afforded regarding the Vaccination Mandate and its impact on

Plaintiffs’ continued employment and pay were constitutionally

adequate. (ECF No. 89, Feb. 11, 2022 Order at 14-15, 33.) The

Court noted that, “Importantly, the parties do not dispute that

the [Impact Arbitration] Awards and the CBAs provided for

expedited review processes for exemptions and accommodations,

providing an opportunity to be heard for Plaintiffs challenging

the deprivation of their pay.” (Id. at 19.) The Court also

noted that “none of the relevant parties, [including

Plaintiffs], dispute that the Vaccination Mandate is lawful and

requires all NYC DOE employees to be vaccinated, or to receive

an exemption or accommodation,” and that instead Plaintiffs

alleged that the termination of employees pursuant to the

Vaccination Mandate was unlawful due to a lack of procedural due

process. (Id. at 21-22.)

Citing to Second Circuit authority, the Court noted,

“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).” (Id. at 19.)

The Court found that the NYC DOE had provided constitutionally

sufficient pre- and post- deprivation procedures, to the

Plaintiffs who were notified of being terminated or having pay

withheld due to their failure to get the vaccine, and were

provided procedures to seek relief. (Id. at 19.)

In its February 11, 2022 Order, the Court also

reiterated its findings in the November 24, 2021 Order, and

confirmed that, “Plaintiffs have not submitted any new or

supplemental evidence in support of their instant motion that

compels the Court to conclude that any of the adequate and

available processes have been withheld from the Plaintiffs.”

(Id. at 16.) The Court specifically found that the Plaintiffs

had a property interest in their continued employment and that:

[First,] [t]he pre- and post-deprivation

processes available to Plaintiffs, as

described in the Court’s November 24, 2021,

Order, were made known to Plaintiffs well in

advance of any action by the NYC DOE, and were

and are available through their unions and

through established state procedures.

Second, the pre- and post-deprivation

proceedings articulated in the Awards were

incorporated into the Plaintiffs’ collective

bargaining agreements . . . The procedures

outlined in CBAs are generally found to

constitute adequate post-deprivation process

. . . [and] Plaintiffs can still seek relief

through Article 78 proceedings . . . . The

Second Circuit has advised that the Article 78

proceeding can provide a sufficient post

deprivation remedy.

(Id. at 17-20.)

Accordingly, in its February 11, 2022 Order, the Court

held that the, “Vaccination Mandate is a lawful condition of

employment and, thus, upon termination, Plaintiffs have been

provided constitutionally adequate process under their

applicable CBAs as affected by the relevant Arbitration Awards

or agreements and all relevant state statutes.” (Id. at 21.)

4. Defendants’ Motions to Dismiss

On the same day that the Court denied Plaintiffs’

Second Motion for Preliminary Injunction, the Court set a pre-

motion conference for February 25, 2022 to schedule the

Defendants’ anticipated motions to dismiss under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim. (Feb.

11, 2022 Pre-Motion Conf. Order.) On May 24, 2022, the parties

fully briefed the Defendants’ motions to dismiss, including the

Plaintiffs’ consolidated opposition memorandum and each of the

Defendants’ respective replies.11

On July 7, 2022, the Plaintiffs filed for leave to

provide supplemental briefing or amend their opposition brief to

Defendants’ motions to dismiss. (ECF No. 133, Pl. Letter.) The

Defendants (except for DC 37) each responded by letter. (ECF

Nos. 134 UFT/CSA Supp. Letter; 135, Scheinman Supp. Letter; 135,

DOE Supp. Letter.) On July 12, 2022, the Court denied

Plaintiff’s motion for leave to file or amend their opposition

memorandum, explaining that further briefing would not be

necessary, though the Court would consider the letters already

filed. (July 12, 2022 Order.) On February 13, 2023, in light

of the City of New York’s announcement that it had discontinued

the Vaccination Mandate for municipal workers on February 10,

2023, the parties were ordered to advise the Court of their

respective views as to which issues, if any, in this action have

been mooted, and which issues remain. (Feb. 13, 2023 Order.)

The parties responded by letter. (ECF Nos. 138, DOE 2d. Supp.

Letter; 140, UFT/CSA 2d. Supp. Letter; 141, DC 37 2d. Supp.

Letter; 142, Scheinman 2d. Supp. Letter.) The parties

11 ECF Nos. 114, DOE Mot. to Dismiss; 115, DOE Decl.; 116, DOE Mot. to Dismiss

Mem.; 117, DC 37 Mot. to Dismiss; 118, DC 37 Mot. to Dismiss Mem.; 119, DC 37

Reply; 121, CSA-UFT Mot. to Dismiss; 122, CSA-UFT Mot. to Dismiss Mem.; 124-

124-4, Scheinman Mot. to Dismiss Mem. and exhibits attached thereto; 125,

Pls. Decls.; 126, Pls. Opp’n Mem.; 127, DOE Reply; 128, CSA-UFT Reply;

Scheinman Reply.

responded, all acknowledging that there remained at least some

live issues, given that employees who had been terminated for

failure to show proof of vaccination would not automatically be

reinstated to their prior positions with back pay. (ECF Nos.

138; 140; 141; 142.)

LEGAL STANDARD

To survive a motion to dismiss pursuant to 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570,

(2007)). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

conduct alleged.” Id.

When considering a motion to dismiss under Rule

12(b)(6), a district court must “accept as true all factual

allegations in the complaint and draw all reasonable

inferences in favor of the non-moving party.” Pollok v. Chen,

806 F. App’x 40, 44 (2d Cir. 2020) (citation omitted) (summary

order). In considering a 12(b)(6) motion, the Court may refer

to “documents attached to [the complaint] or incorporated in it

by reference, documents ‘integral’ to the complaint and relied

upon [by the plaintiff], and facts of which judicial notice may

properly be taken . . .” Grant v. Cnty. of Erie, 542 F. App’x

21, 23 (2d Cir. 2013) (summary order); see also Chambers v. Time

Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (clarifying that

“a plaintiff’s reliance on the terms and effect of document in

drafting the complaint is a necessary prerequisite to the

court’s consideration of a document on a dismissal motion; mere

notice of possession is not enough.”) (emphasis in original).

“[A] district court may [also] rely on matters of

public record in deciding a motion to dismiss under Rule

12(b)(6)[.]” See Pani v. Empire Blue Cross Blue Shield, 152

F.3d 67, 75 (2d Cir. 1998). In taking judicial notice of such

public records, the Court does so only to establish “the fact of

such litigation,” not for the truth of the matters asserted in

that proceeding. See Glob. Network Commc’ns, Inc. v. City of

New York, 458 F.3d 150, 157 (2d Cir. 2006) (“A court may take

judicial notice of a document filed in another court . . . to

establish the fact of such litigation and related filings.”

(internal quotation marks omitted)).

DISCUSSION

I. Declaratory Judgment and Injunctive Relief

In Plaintiffs’ Amended Complaint, the first through

fifth causes of action request a declaratory judgment, presumably

under the Declaratory Judgment Act (“DJA”), and the sixth cause of

action requests injunctive relief. (ECF No. 47, Am. Compl. ¶¶

272-327.) The DJA “provides a remedy, not a cause of action.” KM

Enters., Inc. v. McDonald, No. 11-CV-5098 (ADS) (ETB), 2012 WL

4472010, at *19 (E.D.N.Y. Sept. 25, 2012), aff’d, 518 F. App’x 12

(2d Cir. 2013) (summary order). “Similarly to declaratory relief,

a request for injunctive relief is not a separate cause of action.”

Id. at *20 (alteration and internal quotation marks omitted); see

also Chiste v. Hotels.com L.P., 756 F. Supp. 2d 382, 406–07

(S.D.N.Y. 2010) (“Declaratory judgments and injunctions are

remedies, not causes of action.”) (collecting cases). Because

Plaintiffs’ first through sixth causes of action request remedies,

rather than plead facts to support separate causes of action, the

first through sixth causes of action are dismissed for failure to

state a claim.12

The Court will now discuss its prior findings and final

conclusions in its Orders dated November 24, 2021 and February 11,

2022 about the Plaintiffs’ underlying procedural due process

claims and § 1983 conspiracy claims.

II. The Court’s Prior Legal Findings

Plaintiffs allege in their Amended Complaint that,

“[t]his is a civil action seeking injunctive relief, declarative

judgment relief to protect the Plaintiffs’ constitutional rights

to due process and property rights (U.S. Constitution,

Fourteenth Amendment). . . . [and] a monetary damages award on

behalf of the Plaintiffs and against the Defendants pursuant to

42 U.S.C. § 1983 for a conspiracy to violate the Plaintiffs’

constitutional rights to due process and property rights (U.S.

Constitution, Fourteenth Amendment).” (ECF No. 47, Am. Compl.

¶¶ 112-13.) Thus, the primary question the Court must again

answer in deciding Defendants’ motions to dismiss is whether the

Amended Complaint sufficiently pleads that Defendant NYC DOE

provided inadequate pre- and post- deprivation procedural due

process required by the Constitution and, should be enjoined and

restrained by this Court from withholding pay or terminating pay

for employees who failed to comply with the Vaccination Mandate.

(See Am. Compl. ¶¶ 272-442.)

A procedural due process claim requires a plaintiff to

establish that (1) he or she possesses a protected liberty or

property interest, and (2) was deprived 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. Cnty.

of Nassau, 292 F.3d 307, 313 (2d Cir. 2002). 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, 426 F.3d at 198

(citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546

(1985)).

For the reasons below, the Court dismisses the

Plaintiffs’ allegations that they were not provided

constitutionally sufficient procedural due process by NYC DOE.

a. Law of the Case Doctrine

Defendants argue that the law of the case doctrine

precludes re-litigation of Plaintiffs’ procedural due process

claims,in light of the Court’s multiple orders denying

Plaintiffs’ motions for preliminary injunction. (ECF No. 116,

DOE Mot. to Dismiss Mem. at 6-11). The law of the case doctrine

holds that a court “may depart from the law of the case for

‘cogent’ or ‘compelling’ reasons including an intervening change

in law, availability of new evidence, or ‘the need to correct a

clear error or prevent manifest injustice.’” Johnson v. Holder,

564 F.3d 95, 99-100 (2d Cir. 2009) (quoting United States v.

Quintieri, 306 F.3d 1217, 1230 (2d Cir. 2002)).

With respect to applying the law as determined in this

Court’s preliminary injunction decisions prior to the current

motions to dismiss, the Court notes that the “preliminary

determination of likelihood of success on the merits in a ruling

on a motion for preliminary injunction is ordinarily

tentative[.]” Goodheart Clothing Co., Inc. v. Laura Goodman

Enters., Inc., 962 F.2d 268, 274 (2d Cir. 1992). The Court

acknowledges that “[a] party . . . is not required to prove

[their] case in full at a preliminary-injunction hearing, and

the findings of fact and conclusions of law made by a court

granting a preliminary injunction are not binding at trial on

the merits.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395

(1981) (citations omitted).

Thus, the Court need not decide here whether the law

of the case doctrine applies to prevent or compel this Court’s

reconsideration of the factual and legal issues discussed in its

November 24, 2021 and February 12, 2022 Orders denying

Plaintiffs’ motions for a preliminary injunction on the same

claims. Cf. Cangemi v. United States, 13 F.4th 115, 140 (2d

Cir. 2021) (the law of the case doctrine is “discretionary and

does not limit a court’s power to reconsider its own decision

prior to final judgment” (quoting Virgin Atl. Airways, Ltd. v.

Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992))).

For the reasons set forth below, however, the Court

determines that the factual findings and legal analysis in the

Court’s November 21, 2021 and February 11, 2022 Orders may be

useful in considering the Defendants’ instant motions to

dismiss.

b. Plaintiffs’ Procedural Due Process Claim

Plaintiffs filed the Amended Complaint after their

First Motion for Preliminary Injunction and the Court’s November

24, 2021 Order denying the Plaintiffs’ First Motion, and before

Plaintiff’s Second Motion for Preliminary Injunction and

February 11, 2022 Order denying the Plaintiffs’ Second Motion.

Plaintiffs’ allegations in their Amended Complaint and in their

opposition to the Defendants’ motions to dismiss are duplicative

of the identical issues before the Court in their two motions

for a preliminary injunction. In re Peters, 642 F.3d 381, 386

(2d Cir. 2011) (“The law of the case doctrine, although not

binding, counsels a court against revisiting its prior rulings

in subsequent stages of the same case absent cogent and

compelling reasons, including, inter alia, the need to correct a

clear error or prevent manifest injustice.”) (internal quotation

marks omitted).

Furthermore, because Plaintiffs sought both a

prohibitory and mandatory injunction in their First and Second

Motions for a Preliminary Injunction, the Court previously

reviewed the merits of Plaintiffs’ legal arguments under the

higher pleading standard and found twice that Plaintiffs had

failed to demonstrate a “clear” or “substantial” likelihood of

success on the merits of their procedural due process claims,

rather than merely a likelihood of success. (See ECF Nos. 33,

Nov. 24, 2021 Order at 14; 89, Feb. 11, 2022 Order at 12.) See

also Tom Doherty Assocs. v. Saban Ent., Inc., 60 F.3d 27, 33-34

(2d Cir. 1995) (plaintiffs seeking a mandatory injunction must

meet higher standard and must show a “clear” or “substantial”

likelihood of success on the merits); D.D. ex rel. V.D. v.

N.Y.C. Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006) (where the

injunctive relief sought is a mandatory injunction, or an

injunction that “alters the status quo by commanding a positive

act,” the movant must meet the higher standard of “mak[ing] a

clear or substantial showing of a likelihood of success on the

merits.”)

Accordingly, having reviewed at length the Plaintiffs’

procedural due process allegations in the Amended Complaint and

as articulated in the Plaintiffs’ submissions, the Court

determines that the legal analysis in the November 24, 2021 and

February 12, 2022 Orders denying a preliminary injunction

addresses most of the issues presented by Defendants’ motions to

dismiss, specifically the sufficiency of Plaintiffs’

allegations. Barring “an intervening change in law” or

“availability of new evidence,” discussed further below, the

Court will incorporate its analysis to find on the merits that

Plaintiffs’ Amended Complaint fails to state viable claims

because: (1) the COH Order was a lawful condition of employment,

and (2) the Plaintiffs were adequately notified of the pre- and

post-deprivation processes to challenge the pending deprivation

of Plaintiffs’ continued employment and pay. The facts alleged

in the Amended Complaint establish that the pre- and post-

deprivation procedures were constitutionally adequate to satisfy

Due Process. Johnson, 564 F.3d at 99-100.

c. No New Evidence

The Court notes that it considered the Amended

Complaint and its exhibits when making its ruling on the

Plaintiffs’ Second Motion for Preliminary Injunction on the same

issues. (ECF No. 76-12, Second Motion for Preliminary

Injunction, Ex. F, Amended Complaint.) See Sterling v. Deutsche

Bank Nat’l Tr. Co. as Trustees for Femit Tr. 2006-FF6, 368 F.

Supp. 3d 723, 725 n. 2 (S.D.N.Y. 2019) (“In deciding a motion

for preliminary injunction, a court may consider the entire

record including affidavits and other hearsay evidence.”). As

briefly discussed supra, any evidence presented and incorporated

in Plaintiffs’ Amended Complaint did not, and still does not,

alter the Court’s considerations when analyzing the procedural

due process claims in the Plaintiffs’ Second Motion for

Preliminary Injunction and the issues in the sufficiency of

Plaintiffs’ allegations in considering Defendants’ motions to

dismiss. The Amended Complaint’s exhibits included the full

CBAs of Union Defendants, the Impact Arbitration Award, the

Declaration of Impasse, and the PERB appointment. (See ECF No.

47-1-47-14, Am. Compl., Exs. A to N.)

With their Second Motion for Preliminary Injunction,

the Plaintiffs submitted more declarations from Plaintiffs and

termination notices along with the Amended Complaint, and the

Court found that, “Plaintiffs have not submitted any new or

supplemental evidence in support of their instant motion that

compels the Court to conclude that any of the adequate and

available processes have been withheld from the Plaintiffs.”

(ECF No. 89, Feb. 11, 2022 Order at 16.) The Court again found

that the Plaintiffs did not, because they could not, demonstrate

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

for their procedural due process claims. (Id. at 12.)

Here, the Plaintiffs added new exhibits in their

opposition motion to Defendants’ motions to dismiss, which were

not attached or referred to in the Plaintiffs’ Amended

Complaint.13 (See ECF No. 125-125-7, Graff Aff. and Exs. A to

G.) Courts in this Circuit have made clear that a plaintiff

may not bolster a deficient complaint through extrinsic

13 Plaintiffs’ opposition memorandum included an affirmation from Plaintiffs’

counsel Austin Graff, Esq. (ECF No. 125) and six copies of various appeal

decisions and copies of notifications from the NYC DOE terminating employees.

(ECF No. 125-1-125-7, Ex. A, Arbitrator Scheinman Decision; Ex. B, Arbitrator

Peak Decision; Ex. C, Arbitrator McCray Decision; Ex. D, Arbitrator Grey

Decision; Ex. E, Arbitrator Reilly Decision; Ex. F, Arbitrator Torrey

Decision; Ex. G, Notice of Determinations.)

documents submitted in opposition to a defendant's motion to

dismiss. See Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d

Cir. 1998) (holding that plaintiff could not amend her complaint

through a legal memorandum filed in opposition to a motion to

dismiss); S B ICE, LLC v. MGN, LLC, No. 08-CV-3164, 2008 WL

4682152, at *1 n.1 (S.D.N.Y. Oct. 20, 2008) (considering only

the complaint, exhibits attached to the complaint, and documents

integral to the complaint). If, however, the extrinsic evidence

is attached to, incorporated in, or integral to the complaint,

it may be considered on a motion to dismiss. Chambers v. Time

Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (holding that

pleadings are not limited to the four corners of a complaint but

can include “‘any written instrument attached to it as an

exhibit or any statements or documents incorporated in it by

reference.’”)

The Court finds that Plaintiffs’ new exhibits are

either not integral to the Amended Complaint’s allegations or

have previously been considered by the Court when denying the

Plaintiffs’ motions for preliminary injunction. Cf. Chambers,

282 F.3d at 153 (“Even where a document is not incorporated by

reference, the court may nevertheless consider it where the

complaint ‘relies heavily upon its terms and effect,’ which

renders the document ‘integral’ to the complaint.”)(citation

omitted). The factual record, therefore, remains unchanged in

any relevant manner from the time of the filing of the Amended

Complaint and the Court’s February 11, 2022 Order denying the

Plaintiffs’ Second Motion for Preliminary Injunction.

Considering the sufficiency of the Amended Complaint’s factual

allegations, the Court finds that Plaintiffs fail to state a

claim because they allege facts showing that they were afforded

due process prior to the suspension and termination of their

employment by DOE. Thus, Plaintiffs’ Amended Complaint fails to

state claims for violations of Plaintiffs’ Due Process Rights.

d. Intervening Law

Third, there has been no change in intervening law

since the Court’s November 24, 2021 and February 11, 2022 Orders

finding that Plaintiffs’ procedural due process rights were not

violated, despite a substantial amount of litigation concerning

the New York City’s Vaccination Mandate.14 See, e.g., Marciano

14 The Court’s procedural due process findings are not based on the process

required by state or municipal statutes. Moreover, there has not been a

substantial change in intervening law concerning this Court’s finding that

the Vaccination Mandate was a condition of employment. See Andre-Rodney v.

Hochul, No. 21-cv-1053 (BKS) (CFH), 2022 WL 3027094 (N.D.N.Y. Aug. 1, 2022)

(vaccine was condition of employment for healthcare workers); D’Cunha v.

Northwell Health Sys., No. 22-cv-0988 (MKV), 2023 WL 2266520 (E.D.N.Y. Feb.

28, 2023) (same); Commey v. Adams, No. 22-CV-0018 (RA), 2022 WL 3286548

(S.D.N.Y. Aug. 11, 2022) (finding vaccination to be condition of employment

for porter); Kane v. de Blasio, No. 21-CV-7863 (NRB), 2022 WL 3701183

(S.D.N.Y. Aug. 26, 2022) (vaccine was condition of employment); Marciano, 589

F. Supp. 3d at 436 (same). Nearly all other New York state courts to address

the issue have found that the Vaccination Mandate was a condition of

employment. Compare Garvey v. City of New York, 77 Misc. 3d 585 (N.Y. Sup.

Ct., Richmond Cnty., Oct. 24, 2022) (finding mandate was not a condition of

employment), with Clarke v. Bd. of Educ. of City Sch., Index No. 160787/21,

2023 WL 2124546 (N.Y. App. Div. 1st Dep’t, Feb. 21, 2023) (finding mandate

was a condition of employment); Ansbro v. Nigro, No. 531749/2021 (N.Y. Sup.

Ct. Kings Cnty. Sep. 21, 2022) (same); N.Y.C. Mun. Labor Comm. v. City of

N.Y., 2022 NY Slip Op. 22121 (N. Y. Sup. Ct. N.Y. Cnty. Apr. 21, 2022)

v. de Blasio, 589 F. Supp. 3d 423, 436 (E.D.N.Y. 2022)

(plaintiff received constitutionally sufficient minimum process

for New York City Police Department (NYPD) vaccine policy);

Kane v. de Blasio, No. 21-cv-7863 (NRB), 2022 WL 3701183, at *12

(S.D.N.Y. Aug. 26, 2022) (constitutionally sufficient minimum

process was provided for DOE workers); cf. Donohue v. Hochul,

No. 21-CV-8463 (JPO), 2022 WL 673636, at *7-9 (S.D.N.Y. Mar. 7,

2022) (public-school mask mandate did not implicate procedural

due process concerns); Commey v. Adams, No. 22-CV-0018 (RA),

2022 WL 3286548, at *6 (S.D.N.Y. Aug. 11, 2022) (no procedural

due process concerns because mandate was legislative in nature);

Collins v. City Univ. of New York, No. 21-CV-9544 (NRB), 2023 WL

1818547, at *10 (S.D.N.Y. Feb. 8, 2023) (same); Mongielo v.

Hochul, No. 22-CV-116-LJV, 2023 WL 2307887, at *17-18 (W.D.N.Y.

Mar. 1, 2023) (same).

Accordingly, the Court reaches the same conclusions

about Plaintiffs’ procedural due process claims as alleged in

their Amended Complaint, and finds that Defendants provided

(same); O’Reilly v. Bd. of Educ. of City Sch. Dist. of City of New York, No.

16104/21, 2023 WL 2124731, at *1 (N.Y. 1st Dep’t, Feb. 21, 2023) (same).

Plaintiffs also argued in a supplemental letter that the Court should

consider an Opinion and Award issued by the Scheinman Defendants in June

2021, filed as an exhibit in a state court case. (ECF 133, Pls. Supp.

Letter.) To the extent the Plaintiffs try to assert that the June 2021

Arbitration Opinion and Award or the ongoing state court case are

“intervening law,” as discussed extensively below, the Court bases its

procedural due process finding on constitutional standards, not on state or

municipal standards. Furthermore, given that the June 2021 Arbitration

Opinion and Award does not apply in any way to the Plaintiffs in this case,

the Court finds it unpersuasive. (ECF No. 135, DOE Supp. Letter at 1-2.)

sufficient notice and opportunity to Plaintiffs to satisfy

procedural due process regarding the condition of their

employment that they receive the COVID-19 vaccination.

III. Plaintiffs’ Opposition to the Motions to Dismiss

In opposition to the Defendants’ motions to dismiss

all of their claims, the Plaintiffs no longer contend that the

Arbitration Awards and CBAs provided inadequate pre- and post-

deprivation procedures, as Plaintiffs had already conceded this

issue in their Second Motion for Preliminary Injunction. (See

generally ECF Nos. 126, Pl. Opp’n Mem.; 89, Feb. 11, 2022 Order

at 19.) Nor do Plaintiffs dispute that the Vaccination Mandate

itself was a lawful condition of employment, as they had also

conceded this issue in their Second Motion for Preliminary

Injunction. (See generally ECF Nos. 126, Pl. Opp’n Mem.; 89,

Feb. 11, 2022 Order at 21-22. )

Rather than defend the sufficiency of their

allegations, Plaintiffs’ opposition memorandum asserts that “if”

the UFT, CSA, and DC-37 Impact Arbitration Awards and Agreements

are invalid under state statutory and case law because

Defendants lacked authority to arbitrate and agree to the Impact

Arbitration Awards, “the pre- and post- deprivation process[es]

were also invalid and therefore, the Court’s prior rulings must

be revisited.” (ECF No. 126, Pl. Opp’n Mem. at 9-10.) The

Plaintiffs specifically assert in their opposition memorandum

that the Union Defendants and DOE lacked authority to enter into

arbitration with the Plaintiffs’ unions to resolve their

impasse, and that the arbitration awards violated New York Civil

Service Law § 209 and was contrary to the New York State Court

of Appeals case, Board of Education of City of School Dist. v.

New York State Public Employment Relations Bd., 75 N.Y.2d 660,

671 (1990).

In addition, despite Plaintiffs’ concession that the

Vaccination Mandate was a condition of employment, Plaintiffs

also contend in their opposition memorandum that the NYC DOE

violated New York Civil Service Law § 201.4 and argue again that

the Court must also revisit its prior finding that the

Vaccination Mandate was a condition of employment. (ECF No.

126, Pl. Opp’n Mem. at 9-10.) Thus, Plaintiffs contend that due

to the “illegal, improper” Impact Arbitration Awards and

condition of employment, “the Plaintiffs suffered a denial of

their federal statutory rights, State statutory rights, and

constitutional rights and privileges.” (ECF No. 126, Pls.

Opp’n Mem. at 25.) The Court, however, has already twice found,

and finds again, that the Plaintiffs’ constitutional rights to

be notified of, and challenge the implementation of the

Vaccination Mandate under the Due Process Clause were satisfied

by the Defendants’ Arbitration Awards and other pre- and post-

deprivation processes.

Moreover, although the Court previously has expressed

doubt that the Plaintiffs had standing to challenge the terms of

the Impact Arbitration Awards negotiated by their unions (ECF

No. 33, Nov. 24, 2021 Order at 15)(citing Katir v. Columbia

Univ. 15 F.3d 23, 24-25 (2d Cir. 1994)), the Court need not

resolve the Plaintiffs’ Due Process claim based on Plaintiffs’

challenge to the legality of the Impact Arbitration Awards,

because the correct inquiry is whether available state

procedures, state laws and contract rights, satisfy federal

constitutional requirements. Specifically, the Court defined

the applicable federal constitutional analysis in its February

11, 2022 Order as follows:

The Court must determine not whether state

procedural law was correctly followed or

applied, but rather, whether the processes

provided by state procedures, contract

rights, or other available processes satisfy

constitutional requirements. To determine

whether available processes are adequate, the

Court looks to “[f]ederal constitutional

standards rather than state statutes [to]

define the requirements of procedural due

process.” Robison v. Via, 821 F.2d 913, 923

(2d Cir. 1987) (emphasis added); see also

Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 541 (1985) (“[O]nce it is determined that

the Due Process Clause applies, the question

remains what process is due. . . The answer to

that question is not to be found in the [state]

statute.”) (internal citation and quotation

marks omitted); Russell v. Coughlin, 910 F.2d

75, 78 n.1 (2d Cir. 1990) (“[T]he fact that

the State may have specified its own

procedures that it may deem adequate for

determining the preconditions to adverse

official action . . . does not settle what

protection the federal due process clause

requires.”) (internal quotation marks and

citation omitted). As before, the Court finds

that the processes available to Plaintiffs,

including but not limited to statutes and

contractual procedures, are constitutionally

sufficient.

(Id. at 14.)

The Court’s prior legal conclusion quoted above

remains valid. Having found that the Impact Arbitration Awards

and other procedures and remedies were constitutionally

sufficient, the Court need not and will not determine whether

the Impact Arbitration Awards are valid under state statutory

and state case law. Indeed, the Second Circuit recently

reiterated that a district court failed to properly assess

whether a defendant’s conduct violated the procedural guarantees

of the Due Process Clause where the court examined the due

process claim exclusively by assessing a defendant’s failure to

comply with state law. See Tooly v. Schwaller, 919 F.3d 165,

172-73 (2d Cir. 2019) (“violation of state law does not per se

result in a violation of the Due Process Clause”).

Thus, to the extent that Plaintiffs base their

procedural due process claims solely on alleged violations of

state and municipal law, as noted above, their claims fail. See

McDarby v. Dinkins, 907 F.2d 1334, 1337–38 (2d Cir. 1990) (“When

the minimal due process requirements of notice and hearing have

been met, a claim that an agency’s policies or regulations have

not been adhered to does not sustain an action for redress of

procedural due process violations.”); Bolden v. Alston, 810 F.2d

353, 358 (2d Cir. 1987) (“State procedural requirements do not

establish federal constitutional rights. At most, any violation

of state procedural requirements would create liability under

state law[.]” (citations omitted)).

In their Amended Complaint, the Plaintiffs do not

allege any facts plausibly supporting their allegations of

“infirmities in the [Awards],” or violation of their Due Process

Rights. (ECF No. 126, Pls. Opp’n Mem. at 8, 17, 23.) See also

Bell Atl. Corp., 550 U.S. 544, 557 (2007). When considering a

Rule 12(b)(6) motion, courts are “not required to credit

conclusory allegations or legal conclusions couched as factual

allegations.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)

(internal quotation marks omitted). Here, the allegations in

the Amended Complaint establish that the Awards and the CBAs

provided for expedited review and appeal processes for

exemptions and accommodations, providing an opportunity to

Plaintiffs to be heard in challenging the deprivation of their

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

786 (2d Cir. 1991) (finding that 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.”). Having

determined that the Plaintiffs were afforded constitutionally

adequate pre- and post- deprivation due process, the Court

grants Defendants’ motions to dismiss Plaintiffs’ due process

claims.

IV. Other Causes of Action

a. § 1983 Conspiracy

Having dismissed the Plaintiffs’ claim that Defendants

violated their due process rights, the Court also finds that

Plaintiffs’ allegations are insufficient to state a plausible

conspiracy claim under § 1983 against all Defendants. “To state

a § 1983 conspiracy claim, a plaintiff must allege (1) an

agreement between two or more state actors, (2) ‘to act in

concert to inflict unconstitutional injury,’ and (3) ‘an overt

act done in furtherance of that goal causing damages.’” Barnes

v. Abdullah, No. 11–CV–8168 (RA), 2013 WL 3816586, at *9

(S.D.N.Y. July 22, 2013) (quoting Ciambriello v. Cnty. of

Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002)); Sibiski v. Cuomo,

No. 08–CV–3376 (SJF)(ARL), 2010 WL 3984706, at *6 (E.D.N.Y.

Sept. 15, 2010) (citing same). Notably, “[v]ague and conclusory

allegations that defendants have engaged in a conspiracy to

violate plaintiff’s constitutional rights must be dismissed.”

Poole v. New York, No. 11–CV–921 (JFB)(AKT), 2012 WL 727206, at

*6 (E.D.N.Y. Mar. 6, 2012); see also Krug v. McNally, 368 F.

App’x 269, 270 (2d Cir. 2010) (“[C]omplaints containing only

conclusory, vague, or general allegations that the defendants

have engaged in a conspiracy to deprive the plaintiff of his

constitutional rights are properly dismissed; diffuse and

expansive allegations are insufficient, unless amplified by

specific instances of misconduct.” (alteration in original)

(internal quotation marks omitted)). Plaintiff “must allege . .

. overt acts which defendants engaged in which were reasonably

related to the promotion of the alleged conspiracy.” Elmasri v.

England, 111 F. Supp. 2d 212, 218 (E.D.N.Y. 2000) (internal

quotation marks omitted).

Plaintiffs allegations fail to state a § 1983

conspiracy claim for several reasons. First, as previously

determined, Plaintiffs have not sufficiently alleged an

underlying constitutional violation in their Amended Complaint.

Therefore, Plaintiffs’ § 1983 conspiracy claim fails as a matter

of law. Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d

Cir. 1995) (a § 1983 conspiracy claim “will stand only insofar

as the plaintiff can prove the sine qua non of a § 1983 action:

the violation of a federal right”); AK Tournament Play, Inc. v.

Town of Wallkill, No. 09–CV-10579 (LAP), 2011 WL 197216, at *4

(S.D.N.Y. Jan. 19, 2011) (“Plaintiffs’ § 1983 conspiracy claims

against all Defendants must be dismissed because Plaintiffs have

failed to allege any violation of any cognizable constitutional

right.”), aff’d, 444 F. App’x 475 (2d Cir. 2011) (summary

order); Mitchell v. Cnty. of Nassau, 786 F. Supp. 2d 545, 564

(E.D.N.Y. Mar. 24, 2011) (“[A] § 1983 conspiracy claim fails as

a matter of law where there is no underlying constitutional

violation.”).

Second, the Union Defendants and Scheinman Defendants

are not state actors. To state a § 1983 conspiracy claim

against a private entity, “the complaint must allege facts

demonstrating that the private entity acted in concert with the

state actor to commit an unconstitutional act.” Spear v. Town

of W. Hartford, 954 F.2d 63, 68 (2d Cir. 1992). The Supreme

Court considers a private actor acting under the color of state

law, when the private actor “is a willful participant in joint

activity with the State or its agents.” Adickes v. S.H. Kress &

Co., 398 U.S. 144, 152 (1970). The Court finds that the

allegations fail to plausibly allege that the Union Defendants

and the DOE were acting in concert with a state actor to deny

Plaintiffs’ constitutional rights. Instead, they were in

inherently adversarial positions because “the Union . . .

represent[ed] [city] employees, and thus must be considered to

be an adversary of the [city] government.” McGovern v. Loc.

456, Int’l Bhd. of Teamsters, Chauffeurs & Warehousemen &

Helpers of Am., AFL--CIO, 107 F. Supp. 2d 311, 317 (S.D.N.Y.

2000).

That the Plaintiffs were disappointed with the Union

Defendants’ representation does not establish a viable claim of

§ 1983 conspiracy, especially where the Amended Complaint lacks

any factual allegations that the Defendants reached a “meeting

of the minds” to violate Plaintiffs’ constitutional rights.

Ciambriello, 292 F.3d at 324 (dismissing claims against union

premised on conduct fairly attributable to the state and § 1983

conspiracy because “the very proceeding in which [plaintiff]

alleges that [the union] conspired with the County — the

arbitration — placed [the union] and the County in adversarial

positions”). Instead, because the Union Defendants and DOE were

at an impasse, they engaged in the very arbitration that

resulted in the challenged Impact Arbitration Awards. The Court

also finds that Plaintiff has not alleged sufficient facts to

establish that the Scheinman Defendants are state actors, who

agreed with DOE and the Unions to deprive Plaintiffs of their

Due Process rights, and therefore, Plaintiffs’ § 1983 conspiracy

claims fail.

Third, Plaintiffs do not proffer any nonconclusory

facts regarding the nature of the conspiracy or the overt steps

taken by any of the Defendants in furtherance of that

conspiracy. Apart from “diffuse and expansive allegations” that

are not “amplified by specific instances of misconduct,” Krug,

368 F. App’x at 270 (internal quotation marks omitted), the

Amended Complaint is bereft of any facts sufficient to give rise

to a plausible § 1983 conspiracy claim. In fact, the repeated

references in the Amended Complaint merely refer to a conspiracy

based on Plaintiffs’ vague and conclusory assertions that “[a]s

a result of the conspiracy between [all Defendants], the

[individual Plaintiff’s] constitutional rights have been

violated.” (ECF No. 47, Am. Compl. ¶¶ 113, 172-75, 183-86, 206-

17.) Plaintiffs’ bald allegations, however, do not give rise to

a plausible inference that Defendants acted in concert to

violate Plaintiffs’ constitutional rights when, to the contrary,

the DOE and Union Defendants entered into arbitrations that

resulted in agreements to provide constitutionally required pre-

and post- deprivation procedures for the termination of

employees who failed to comply with the Vaccination Mandate.

The speculative allegations in Plaintiffs’ Amended Complaint

“constitute the type of vague, conclusory, and general

allegations that, standing alone, are routinely found lacking

under Rule 12(b)(6).” Orr ex rel. Orr v. Miller Place Union

Free Sch. Dist., No. 07–CV–787 (DRH)(AKT), 2008 WL 2716787, at

*5 (E.D.N.Y. July 9, 2008) (internal quotation marks omitted);

Rodriguez v. City of New York, No. 08–CV–4173 (RRM)(RLM), 2012

WL 1059415, at *13 (E.D.N.Y. Mar. 28, 2012) (dismissing

plaintiff's § 1983 conspiracy claim on ground that claim was

based on “vague and broad references” and “sheer speculation”).

Accordingly, the Plaintiffs’ § 1983 conspiracy claims

against the Defendants are dismissed for failure to state a

claim.

b. Class Claim

Because Plaintiffs’ claims fail to state a claim,

their class allegations also fail. Cf. Xuedan Wang v. Hearst

Corp., No. 12-CV-793 (HB), 2013 WL 105784, at *3 (S.D.N.Y. Jan.

9, 2013) (noting that where court dismissed a claim under Rule

12(c), motion to strike class allegations could be granted as to

that claim.)

V. Leave to Amend

Under Federal Rule of Civil Procedure 15(a), leave to

amend a complaint “shall be freely given when justice so

requires.” Therefore, “[i]t is the usual practice upon granting

a motion to dismiss to allow leave to replead.” Cortec Indus.,

Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)

(citations omitted). A court may, however, dismiss claims

without leave to amend where the proposed amendments would be

futile. See Ruotolo v. City of New York, 514 F.3d 184, 191 (2d

Cir. 2008) (citing Foman v. Davis, 381 U.S. 178, 182 (1962)).

An amendment to the complaint is futile if the “proposed claim

could not withstand a motion to dismiss pursuant to Rule

12(b)(6).” Dougherty v. Town of N. Hempstead Bd. of Zoning

Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (citing Ricciuti v.

N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). Leave

to amend may also be denied where previous amendments have not

cured the complaint’s deficiencies. Ruotolo, 514 F.3d at 191

(citing Foman, 381 U.S. at 182); see also De Jesus v. Sears,

Roebuck & Co., Inc., 87 F.3d 65, 72 (2d Cir. 1996) (noting that

the Second Circuit has “upheld decisions to dismiss a complaint

without leave to replead when a party has been given ample prior

opportunity to allege a claim.” (collecting cases)).

Here, after extensive briefing, evidentiary

submissions, and a show cause hearing, the Court allowed

Plaintiffs an opportunity to amend their complaint. (ECF No.

33, Nov. 24, 2021 Order; ECF No. 47, Am. Compl.) Despite the

Court’s detailed analysis of Plaintiffs’ claims in its November

24, 2021 Order, Plaintiffs have again failed to allege facts

supporting their claims. Under these circumstances, and because

further amendments to the complaint would not cure the

deficiencies discussed in this opinion, any amendment would be

futile. Plaintiffs’ complaint is, therefore, dismissed with

prejudice. See, e.g., Ariel (UK) Ltd. v. Reuters Grp., PLC, 277

F. App’x 43, 45-46 (2d Cir. 2008) (summary order) (holding that

the district court did not abuse its discretion in not sua

sponte granting leave to amend following dismissal of the

complaint where plaintiff “had already amended its complaint

once, and any amendment would have been futile.”).

CONCLUSION

For the reasons set forth above, Defendants’ motions

to dismiss are GRANTED in their entirety and leave to amend is

DENIED. The Clerk of Court is respectfully directed to enter

judgment in favor of Defendants and close this case.

SO ORDERED.

Dated: March 30, 2023

Brooklyn, New York

ba? Vy),

; ewe

Hon. Kiyo A. Matsumoto

United States District Judge

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