Ibekweh v. Ascend Learning, Inc. (Ascend)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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EMEKA IBEKWEH,

Plaintiff, MEMORANDUM & ORDER

22-CV-1587(EK)(SJB)

-against-

ASCEND LEARNING, INC., and JOHN/JANE

DOES 1–5,

Defendants.

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ERIC KOMITEE, United States District Judge:

Plaintiff Emeka Ibekweh brings various constitutional

claims against his former employer, defendant Ascend Learning,

Inc. (“Ascend”). Proceeding pro se, he alleges that Ascend

improperly suspended and terminated him for failing to comply

with its COVID-19 vaccination policy. Ascend moved to dismiss

the complaint for failure to state a claim. For the reasons set

out below, the motion to dismiss is granted.

Background

The following factual background is taken from

allegations in the complaint, unless otherwise specified, and

assumed to be true for purposes of this motion.

Ibekweh began working at Ascend in 2013 as its

Managing Director of Technology. Compl. ¶ 9, ECF No. 1. The

complaint describes Ascend only as a “Corporation granted

charter by the State of New York to exist,” see id. ¶ 10, but as

discussed below, it appears to be a charter school. In August

2021, in response to the COVID-19 pandemic, New York City began

requiring individuals to provide proof of vaccination to enter

certain indoor businesses. Id. ¶¶ 28–29. Following New York

City’s vaccine mandate, Ascend implemented its own policy,

requiring employees to provide such proof as a condition of

continued employment. Id. ¶¶ 6, 30. Ibekweh received the first

dose of the vaccine and submitted proof to Ascend. Id. ¶¶ 12,

22. At Ascend’s request, he later provided proof that he had

received a second dose as well. Id. ¶ 13.

Thereafter, Ascend’s administrators “summoned

[Ibekweh] to an inquisitorial phone conference,” where they

expressed “doubts regarding the veracity” of his proof of

vaccination. Id. ¶¶ 14–15. During this conference, Ibekweh was

told that his vaccination card was “suspicious” because it

indicated a time frame between doses of “less than 21 days

apart,” showed identical “lot numbers” for the first and second

dose, and listed the location of vaccination only as “CVS” (with

no store number). Id. ¶¶ 16-23. He asked whether cards

submitted by other staff members reflected similar defects, but

he received no answer. Id. ¶ 21.

Ibekweh alleges that he had previously informed the

conference participants that he would be receiving his second

dose early to comply with Ascend’s policy, and that they had

assured him that doing so would allow him to maintain

employment. Id. ¶¶ 18–19. At the administrators’ request, he

later “provided . . . his doctor’s name and office address for

further verification.” Id. ¶ 23.

Afterwards, Ibekweh received notice that he had been

suspended without pay, beginning on December 10, 2021, for

failure to provide proof of compliance with Ascend’s vaccine

mandate. Id. ¶ 24. He was then “coerced to sign” a separation

agreement, but declined to do so. Id. ¶ 9.

The complaint sets out three causes of action, styled

as separate “Counts.” Invoking Section 1983, Ibekweh asserts

violations of the Fourteenth Amendment’s Equal Protection and

Due Process Clauses, as well as the Supremacy Clause. In

addition, reading the complaint liberally in light of

Plaintiff’s pro se status, the Court also considers whether he

pleads a federal claim for employment discrimination under Title

VII of the Civil Rights Act of 1964.

Legal Standard

On a motion to dismiss under Rule 12(b)(6), “the

court’s task is to assess the legal feasibility of the

complaint.” Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir.

2020).1 In doing so, the Court “must take the facts alleged in

the complaint as true, drawing all reasonable inferences in [the

plaintiff’s] favor.” In re NYSE Specialists Sec. Litig., 503

F.3d 89, 91 (2d Cir. 2007). Pro se complaints are “held to less

stringent standards” than pleadings drafted by attorneys, and

the Court will read a pro se complaint liberally and interpret

it as raising the strongest arguments it suggests. Erickson v.

Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed

Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

Still, a pro se plaintiff is not exempt from

“compliance with relevant rules of procedural and substantive

law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Thus,

to survive a motion to dismiss, the complaint must plead

sufficient “facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007).

“A claim is plausible when the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.

2011). Courts “are not bound to accept as true a legal

1 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

conclusion couched as a factual allegation,” and “[t]hreadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).

Discussion

Ascend moves to dismiss the complaint, first and

foremost, on the ground that Ibekweh fails to plausibly allege

state action — a prerequisite to bringing claims under Section

1983. See Mem. of Law in Supp. of Def.’s Mot. to Dismiss (“Def.

Mot.”) 4–10, ECF No. 22. Ibekweh’s complaint levels conclusory

allegations that Ascend acted under color of state law, but no

factual content in support of those allegations. See, e.g.,

Compl. ¶ 2 (plaintiff is seeking “redress against state actors

in their official capacity to end the deprivation, under state

law,” of his rights); id. ¶ 6 (“Plaintiff alleges that

defendants Ascend [sic], acting as alter egos enmeshed with” New

York City, are properly characterized as state actors).

Despite the complaint’s near-silence as to the nature

of Ascend’s purpose, organization, and oversight, the Court

construes the complaint to allege that Ascend is a charter

school under New York state law. See id. ¶ 10. Ascend, for its

part, asserts that it is a “private charter school,” and then

goes on to treat its “private entity” status as a foregone

conclusion. See, e.g., Def. Mot. 1, 4–6.2 But the questions of

whether and under what circumstances a New York charter school

and its employees act under the color of state law actor entail

a more complicated inquiry.

The Second Circuit has not resolved the question, but

district courts have considered charter schools to be state

actors for purposes of Section 1983 claims, in at least some

circumstances. See, e.g., Matwijko v. Bd. of Trustees of Glob.

Concepts Charter Sch., No. 04-CV-663A, 2006 WL 2466868, at *5

(W.D.N.Y. Aug. 24, 2006) (teacher terminated by charter school,

in alleged violation of First Amendment rights); Patrick v.

Success Acad. Charter Sch., Inc., 354 F. Supp. 3d 185, 209

(E.D.N.Y. 2018) (student subject to long-term suspension, in

alleged violation of due process rights).

Certain provisions of New York law undercut Ascend’s

suggestion that it is de facto a private entity. For example,

New York’s Education Law defines a charter school as an

“independent and autonomous public school,” with “[t]he charter

entity and the board of regents” considered “the public agents

authorized to supervise and oversee the charter school.” N.Y.

Educ. Law § 2853(1)(c) (emphases added). Charter schools must

2 Ascend’s own website identifies it as “a network of K-12 public

schools in Brooklyn.” Ascend, https://ascendlearning.org/ (last visited

Sept. 24, 2023) (emphasis added).

“meet the same health and safety, civil rights, and student

assessment requirements applicable to other public schools,” and

they can receive financing from the school district in which

they are located. Id. §§ 2854(1)(b), 2856 (emphasis added).

In describing itself as a private entity in conclusory

fashion, Ascend’s briefing does not engage with the questions

informing the state-action analysis as it applies to charter

schools. In the end, neither will the Court. There is no need

to do so here: even assuming that Ascend is a state actor for

purposes of Ibekweh’s Section 1983 claims, the complaint fails

to state any claim upon which relief can be granted.3

A. Equal Protection Claim

Ibekweh first alleges that Ascend’s vaccination policy

and its enforcement thereof violated the Equal Protection

Clause. That constitutional provision “is essentially a

direction that all persons similarly situated should be treated

alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473

U.S. 432, 439 (1985); see Brown v. City of Syracuse, 673 F.3d

3 Ibekweh also includes, in the case caption, defendants “John/Jane Does

1–5.” The complaint, however, alleges no facts as to the identities or

actions of these Doe defendants, and Ibekweh has not otherwise made any

attempt to identify or serve them. Any claims against the Doe defendants are

therefore dismissed. See Fed. R. Civ. P. 8(a)(2) (requiring a complaint to

include a “short and plain statement of the claim showing that the pleader is

entitled to relief”); Gabriel Cap., L.P. v. Natwest Fin., Inc., 137 F. Supp.

2d 251, 269 (S.D.N.Y. 2000) (dismissing claims against Doe defendants on Rule

8 grounds). To the extent that the Doe Defendants are employees at Ascend,

claims against them fail for the same reasons as those brought against

Ascend.

141, 151 (2d Cir. 2012). “[I]t is axiomatic that [to establish

an equal protection violation] a plaintiff must allege that

similarly situated persons have been treated differently.”

Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir.

1994). Here, Ibekweh fails to identify any similarly situated

persons who were treated differently; indeed, he does not allege

that any other Ascend employee was permitted to work despite not

complying with Ascend’s vaccination policy. That alone warrants

dismissal of Ibekweh’s equal protection claim. See Kane v. de

Blasio, 623 F. Supp. 3d 339, 359 (S.D.N.Y. 2022) (dismissing

claim for failure to allege differential treatment in education

department’s enforcement of its COVID vaccine mandate).

Ibekweh’s equal protection claim also fails for

another reason. “The Equal Protection Clause does not require

that all persons be dealt with identically, but it does require

that a distinction made have some relevance to the purposes for

which the classification is made.” Clementine Co., LLC v.

Adams, 74 F.4th 77, 89 (2d Cir. 2023). Thus, where the law at

issue “neither burdens a fundamental right nor targets a suspect

class,” the Court will generally “uphold the classification so

long as it bears a rational relation to some legitimate end.”

Winston v. City of Syracuse, 887 F.3d 553, 560 (2d Cir. 2018).

Ibekweh does not allege that he is a member of any

legally protected class, nor can he point to any fundamental

right burdened by Ascend’s vaccination policy. Indeed, the

Second Circuit and the Supreme Court “have consistently

recognized that the Constitution embodies no fundamental right

that in and of itself would render vaccine requirements imposed

in the public interest, in the face of a public health

emergency, unconstitutional.” We The Patriots USA, Inc. v.

Hochul, 17 F.4th 266, 293 (2d Cir. 2021), cert. denied sub nom.

Dr. A. v. Hochul, 142 S. Ct. 2569 (2022); see We The Patriots

USA, Inc. v. Conn. Off. of Early Childhood Dev., 76 F.4th 130,

156 (2d Cir. 2023) (“[A]bsolute freedom from unwanted

vaccination is [not] a fundamental right.”).4

Accordingly, rational basis review is applicable here.

That standard requires the state only “to have chosen a means

for addressing a legitimate goal that is rationally related to

achieving that goal.” Kane v. De Blasio, 19 F.4th 152, 166 (2d

Cir. 2021). “Rational basis review contemplates a strong

presumption of validity, and those attacking the rationality of

the legislative classification have the burden to negative every

4 The Second Circuit has explicitly rejected the argument that the

Supreme Court “implicitly overruled” Jacobson v. Massachusetts, 197 U.S. 11

(1905), which recognized that a vaccination mandate was a valid exercise of

state power, in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63

(2020). Cf. Klaassen v. Trs. of Indiana Univ., 7 F.4th 592, 593 (7th Cir.

2021) (explaining, post-Roman Catholic Diocese, that a substantive due

process right “depends on the existence of a fundamental right ingrained in

the American legal tradition. Yet Jacobson, which sustained a criminal

conviction for refusing to be vaccinated, shows that plaintiffs lack such a

right.”).

conceivable basis which might support it.” Nassau & Suffolk

Cnty. Taxi Owners Ass’n, Inc. v. New York, 336 F. Supp. 3d 50,

77 (E.D.N.Y. 2018). “In applying this standard, a defendant’s

motion to dismiss will be granted when neither the complaint nor

the non-moving party’s opposition negate any reasonably

conceivable state of facts that could provide a rational basis

for the challenged classification.” Id.

Such is the case here: Ibekweh fails to allege that

Ascend’s policy was an irrational means to achieve the

legitimate state goal of preventing the spread of COVID-19. See

Kane, 19 F.4th at 166 (“[New York City’s] Vaccine Mandate

plainly satisfies [the rational basis] standard . . . . This was

a reasonable exercise of the State’s power to act to protect the

public health.”); see, e.g., Andre-Rodney v. Hochul, 618 F.

Supp. 3d 72, 80–81 (N.D.N.Y. 2022) (dismissing equal protection

challenge to state vaccine policy); Maniscalco v. New York City

Dep’t of Educ., 563 F. Supp. 3d 33, 41 (E.D.N.Y. 2021), aff’d,

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

Ibekweh’s equal protection claim must therefore be

dismissed.5

5 Although not explicitly stated in the complaint, any substantive due

process claim for the violation of any asserted right to “bodily integrity”

would likewise fail. See We The Patriots USA, 17 F.4th at 293; Marciano v.

de Blasio, 589 F. Supp. 3d 423, 434 (S.D.N.Y. 2022).

B. Procedural Due Process Claim

Ibekweh also claims that Ascend’s policy of

conditioning employment on vaccination against COVID-19 violated

his Fourteenth Amendment right to procedural due process.

Compl. ¶¶ 45-46. To state such a claim, a plaintiff must

establish that he (1) possessed a protected liberty or property

interest and (2) faced a deprivation of that interest without

constitutionally adequate process. See O’Connor v. Pierson, 426

F.3d 187, 197 (2d Cir. 2005). Ibekweh alleges that he has a

“liberty interest in his bodily integrity” and “a property

interest in his remunerative employment career.” Compl. ¶ 45.

Ascend, he alleges, deprived him of due process by suspending

him without pay for failing to provide proof of receiving both

doses of the vaccine. Id. ¶ 24. This claim fails because

Ibekweh has not adequately alleged the first element — that he

had a protected liberty or property interest.

Nor, then, can Ibekweh succeed on his claim that Ascend’s policy

violated the unconstitutional conditions doctrine by forcing him to give up

any right to maintain his employment. See Compl. ¶¶ 42-46. The

unconstitutional conditions doctrine “vindicates the Constitution’s

enumerated rights by preventing the government from coercing people into

giving them up.” Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595,

604 (2013). Thus, “the government may not place a condition on the receipt

of a benefit or subsidy that infringes upon the recipient’s constitutionally

protected rights, even if the government has no obligation to offer the

benefit in the first instance.” All. for Open Soc’y Int’l, Inc. v. U.S.

Agency for Int’l Dev., 651 F.3d 218, 231 (2d Cir. 2011), aff’d, 570 U.S. 205

(2013). Because Ibekweh has not identified any right protected by

substantive due process, he cannot allege that his employment is conditioned

on the “giving up” of that right. See Andre-Rodney v. Hochul, 618 F. Supp.

3d 72, 84–85 (N.D.N.Y. 2022) (dismissing state security officer’s claim that

vaccine mandate unconstitutionally conditioned continued employment on

violation of fundamental right to refuse vaccination).

“Protected liberty interests may arise from two

sources — the Due Process Clause itself and the laws of the

States.” Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460

(1989). As noted above, Ibekweh does not have any right under

the Due Process Clause to refuse to receive a COVID-19 vaccine,

and he therefore fails to allege a protected liberty interest.

See We The Patriots, 17 F.4th at 293; see also Kane, 623 F.

Supp. 3d at 361 (dismissing procedural due process challenge to

vaccine mandate because plaintiffs alleged no liberty interest).

As to a property interest, “[a]n interest in continued

employment” may satisfy the first prong of the due process

requirement in certain circumstances. Rasulo v. Hartnett, 831

F. Supp. 2d 714, 721 (S.D.N.Y. 2011). For example, “a person

may possess a protected interest in public employment if

contractual or statutory provisions guarantee continued

employment absent ‘sufficient cause’ for discharge or he can

prove a de facto system of tenure.” Abramson v. Pataki, 278

F.3d 93, 99 (2d Cir. 2002); Donato v. Plainview–Old Bethpage

Cent. School Dist., 96 F.3d 623, 629 (2d Cir. 1996) (“State law

. . . guides us in deciding whether plaintiff possessed only an

unprotected unilateral expectation of employment, or instead had

a constitutionally-protected ‘legitimate claim of

entitlement.’”). An “at-will [state] employee,” however,

“generally has no procedural due process claim based on the

Constitution at all.” De La Cruz v. Guilliani, No. 00-CV-7102,

2002 WL 32830453, at *13 (S.D.N.Y. Aug. 26, 2002).

Here, Ibekweh pleads no factual allegations as to the

terms of his employment as Managing Director of Technology with

Ascend. The complaint does not indicate, for instance, whether

he was an at-will employee or could be terminated only for

cause. Nor does he point to any contractual or statutory

provision from which the Court can infer a protected interest in

continued employment. Because Ibekweh fails to allege that he

had a protectable property interest in his employment at Ascend,

his procedural due process claim must also be dismissed.6

C. Supremacy Clause Claim

Next, Ibekweh asserts that Ascend’s vaccination policy

violates the Constitution’s Supremacy Clause — or, framed

differently, that Ascend’s vaccination mandate conflicts with

the federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 360bbb-3,

6 The complaint also fails to allege the second element of the

procedural due process inquiry — deprivation of an interest without

constitutionally adequate process. Ibekweh does not allege anywhere what

process was due, or what process he did or did not receive with regard to his

suspension and termination. See, e.g., Munafo v. Metro. Transp. Auth., 285

F.3d 201, 212 (2d Cir. 2002) (“An employee who has a property interest in his

employment is entitled to oral or written notice of the charges against him,

an explanation of the employer’s evidence, and an opportunity to present his

side of the story, before he is subjected to the loss of employment.”);

O’Connor v. Pierson, 426 F.3d 187, 198 (2d Cir. 2005) (“[T]he Constitution

mandates only that [pre-deprivation] process include, at a minimum, notice

and the opportunity to respond.”).

which he asserts should preempt his employer’s mandate. See

Compl. ¶¶ 47-58.

“[T]he Supremacy Clause is not the source of any

federal rights . . . and certainly does not create a cause of

action.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S.

320, 324-25 (2015). Ibekweh, however, attempts to bring a

Supremacy Clause-based claim under 42 U.S.C. § 1983. Compl.

¶¶ 57-58. The Second Circuit has explained that “[a] violation

of the Supremacy Clause is distinct from,” and does not in

itself “give rise to, a violation of federal rights actionable”

under Section 1983. Wachovia Bank, N.A. v. Burke, 414 F.3d 305,

321 (2d Cir. 2005). Indeed, Section 1983 offers a remedy “only

[for] violations of rights, not laws.” Gonzaga Univ. v. Doe,

536 U.S. 273, 283 (2002). For a Section 1983 action to lie,

then, the federal statute at issue — here, the FDCA — must

create a federal right. Wachovia, 414 F.3d at 321-22. This is

so because Section 1983 “merely provides a mechanism for

enforcing individual rights secured elsewhere” in federal law;

Section 1983 “by itself does not protect anyone against

anything.” Gonzaga, 536 U.S. at 285.

Ibekweh points to the emergency use authorization

provision of the FDCA as the source of his federal right.

Compl. ¶ 52; see also id. ¶ 1 (“Plaintiff contends that the

aforementioned acts of defendant were a clear violation of the

EUA [Emergency Use Authorization] statute.”). He argues that

Section 360bbb-3(e)(1)(A)(ii) requires that individuals be given

the “option to accept or refuse” a product, and be informed of

its potential risks and benefits, authorized on an emergency

basis under that section. Id. ¶¶ 27, 53.

The Supreme Court has explained that determining

whether a statute confers a right for purposes of a Section 1983

action “is no different from the initial inquiry in an implied

right of action case, the express purpose of which is to

determine whether or not a statute confers rights on a

particular class of persons.” Gonzaga, 536 U.S. at 285. The

key question is whether “Congress intended to confer individual

rights upon a class of beneficiaries,” and the answer must be

rooted in the text and structure of the statute. Id. at 285-87.

Ultimately, “anything short of an unambiguously conferred right”

will not support a cause of action under Section 1983. Id. at

283.

Section 360bbb-3 does not provide an individual right.

The Second Circuit has held that no private right of action

exists to enforce the FDCA, noting that the statute explicitly

restricts enforcement to suits by the United States. See PDK

Labs, Inc. v. Friedlander, 103 F.3d 1105, 1113 (2d Cir. 1997)

(citing 21 U.S.C. § 337(a)). Ibekweh has failed to identify any

right conferred by Section 360bbb-3 that he can vindicate in a

Section 1983 action. This claim, too, must be dismissed.

D. Claim for Racial Discrimination in Employment

Finally, Ibekweh alleges that Ascend used its

vaccination policy to pursue “a racially biased witch hunt”

against him, and that his failure to comply with the vaccination

policy was a pretext for his suspension and termination. See

Compl. ¶ 32; see also id. ¶ 14. Although he does not assert a

specific cause of action based on this conduct, in light of his

pro se status, the Court briefly considers whether the complaint

plausibly states a federal claim for racial discrimination in

employment.

Section 2000e-2(a)(1) of Title VII makes it unlawful

for an employer “to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race.” To plead a prima facie case

of racial discrimination, a plaintiff must show: “(1) [he] is a

member of a protected class; (2) [he] satisfactorily performed

the duties required by the position; (3) [he] was discharged;

and (4) the discharge occurred in circumstances giving rise to

an inference of unlawful discrimination.” Lenzi v. Systemax,

Inc., 944 F.3d 97, 107 (2d Cir. 2019).

The complaint falls well short of plausibly alleging a

Title VII claim. Ibekweh alleges that Ascend implemented “an

endemic impermissible policy of racial profiling” by questioning

and then suspending him for non-compliance with its vaccine

policy. Compl. ¶ 14. Among other deficiencies, however, he

does not allege that he is a member of a protected class. While

referring to racial bias, he does not specify his race. The

complaint also fails to allege any facts that raise an inference

of unfair treatment or termination due to his race. He does not

plead, for example, that non-members of the protected class

received accommodations for, or exemptions from, Ascend’s

vaccination policy. See, e.g., Marte v. Montefiore Med. Ctr.,

No. 22-CV-03491, 2022 WL 7059182, at *4 (S.D.N.Y. Oct. 12,

2022). “[A] complaint consisting of nothing more than naked

assertions” of racial bias, and “setting forth no facts upon

which a court could find a violation of [Title VII], fails to

state a claim.” Martin v. N.Y. State Dep’t of Mental Hygiene,

588 F.2d 371, 372 (2d Cir. 1978).

Conclusion

For the foregoing reasons, Ascend’s motion is granted,

and the complaint is dismissed without prejudice. In light of

Plaintiff’s pro se status, and because additional pleading may

cure at least some of the substantive deficiencies identified

above, the Court grants Plaintiff leave to file an amended

complaint within thirty days from the entry of this Order. See

Grullon v. City of New Haven, 720 F.3d 133, 140 (2d Cir. 2013).

Otherwise, the case will be dismissed with prejudice, and

judgment shall enter.

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: September 27, 2023

Brooklyn, New York