Gonzalez v. Fire Department of the City of New York (FDNY)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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GIOVANNA GONZALEZ,

Plaintiff, MEMORANDUM & ORDER

- against - No. 22-cv-3577(KAM)(RML)

THE CITY OF NEW YORK,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Pro Se Plaintiff Giovanna Gonzalez (“Gonzalez” or

“Plaintiff”), an Emergency Medical Technician (“EMT”) formerly

employed by the New York City Fire Department (“FDNY”) commenced

the instant action on June 17, 2022 against the City of New York

(the “City” or “Defendant”) alleging violations of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. (ECF

No. 1, Complaint, “Compl.”)1

According to the operative Second Amended Complaint (ECF

No. 9, Second Amended Complaint, “SAC”), throughout 2021, FDNY,

1 Although Plaintiff alleges several bases for discrimination in the Second

Amended Complaint and attached exhibits, including discrimination on the

basis of religion, in her December 9, 2022 response to Defendant’s Motion for

a Pre-Motion Conference, Plaintiff confirms that “[h]er Complaint is only for

two counts of ADA violations.” (ECF No. 11 at 7.) Plaintiff clarifies that

her pleading does not state “a due process claim under the [Fourteenth]

Amendment” of the United States Constitution and also that “[a]ny collective

bargaining reference is not relevant[.]” (Id.) The Court takes notice of

Plaintiff’s clarification and construes the Second Amended Complaint as

alleging two claims under the ADA for purposes of resolving Defendant’s

motion to dismiss.

the New York City Health + Hospitals Corporation (“H+H”), and

the City implemented policies to curtail the spread of COVID-19,

including masking requirements, weekly COVID-19 testing, and

eventually, a vaccine mandate requiring all City employees to

show proof of at least one dose of a qualifying COVID-19

vaccine, or to secure an approved exemption through the City’s

reasonable accommodation request process. (SAC ¶¶ 1, 6.)

Plaintiff failed to comply with the vaccine mandate and, after

both her September 16, 2021 and October 27, 2021 exemption

requests were denied, as well as her appeals to the City,

Plaintiff was placed on leave without pay (“LWOP”) status on

April 26, 2022. (SAC ¶ 56.) Plaintiff was ultimately

terminated on or about June 10, 2022. (SAC ¶ 58.)

Plaintiff contends that Defendant’s COVID-19 precautions

contravened “established rights that form the bedrock of modern

society” and that Plaintiff had a “right to refuse the

defendant’s [COVID-19] Policy measures,” including because

Plaintiff believed Defendant’s policies failed to “comply with

the ADA.” (SAC ¶¶ 67, 149.) Specifically, Plaintiff first

alleges that Defendant discriminated against her, in violation

of the ADA, by “regarding her as disabled with a contagious

disease and misclassifying her as having an impaired immune

system,” thereby subjecting her to “non-job-related treatments,”

such as mask-wearing, COVID-19 testing, and the “experimental”

COVID-19 vaccine. (SAC ¶ 47.) Second, Plaintiff alleges that

Defendant retaliated against her in violation of the ADA by

“imposing punitive measures and adverse employment actions,”

including by preventing her from participating in an H+H

training program as well as other career advancement

opportunities, placing her on LWOP status, and ultimately

terminating her role as an FDNY EMT. (SAC ¶ 148.) Plaintiff

seeks injunctive as well as declaratory relief. (SAC at 1.)

Plaintiff also seeks damages in the form of back pay, front pay

or reinstatement of her prior position, compensatory damages,

liquidated damages, other monetary damages, punitive damages,

pre-judgment and post-judgment interest, and an award of costs

and “reasonable court fees.” (SAC ¶ 137.)

Presently before the Court is Defendant’s motion to dismiss

the Second Amended Complaint for failure to state a claim under

Fed. R. Civ. P. 12(b)(6). (ECF Nos. 20, “Def. Mot.”; 24, “Def.

Reply”.) Plaintiff opposes Defendant’s motion to dismiss the

Second Amended Complaint. (ECF No. 23, “Ptf. Opp.”) For the

reasons set forth below, Defendant’s motion to dismiss the

Second Amended Complaint with prejudice is GRANTED and

Plaintiff’s Second Amended Complaint is DISMISSED in its

entirety with prejudice.

BACKGROUND

I. Factual Background

A. The H+H Paramedic Training Program

Plaintiff first became employed as an EMT for the FDNY on

approximately October 31, 2016. (SAC ¶ 21.) In August 2021,

Plaintiff was offered the opportunity to participate in a

paramedic basic training class that was administered by H+H (the

“H+H Paramedic Training Program”). (SAC ¶ 22.) According to

the Second Amended Complaint, successful completion of the H+H

Paramedic Training Program would have resulted in Plaintiff’s

promotion to a paramedic role. (SAC ¶ 22.) However, the H+H

Paramedic Training Program required participants to work in

public hospitals throughout New York City, some of which

required proof of vaccination against COVID-19 for all

employees. (Id.) In light of the COVID-19 vaccination

requirement and Plaintiff’s unvaccinated status, Plaintiff

informed an FDNY Chief, Chief Darnowski, that she was

unvaccinated, but that she nevertheless wished to participate in

the training program. (SAC ¶ 23.) Chief Darnowski purportedly

reassured Plaintiff that her unvaccinated status would not be

prohibitive because she would be assigned to work in hospitals

that did not require a COVID-19 vaccination. (SAC ¶ 23.)

Plaintiff was subsequently informed that vaccination

against COVID-19 was in fact a requirement for participation in

the H+H Paramedic Training Program in accordance with an August

16, 2021 pronouncement by the Governor of the State of New York

of a vaccine mandate for “all healthcare workers in New York

State.” (ECF No. 9 at 53.) On September 9, 2021, Plaintiff was

again informed that “she would lose her seat in the [H+H

Paramedic Training Program] if she did not” show proof of

vaccination against COVID-19. (SAC ¶ 26.) During this

discussion, Plaintiff allegedly informed Chief Braun that her

opposition to the COVID-19 vaccine was “both religious in nature

and that no studies had been conducted to study the impact of

the vaccines on fertility.” (SAC ¶ 27.) Plaintiff alleges that

FDNY Chief Braun “ignored” her stated concerns “and told her she

could either take the vaccine and get paramedic training or go

back to recruitment to find a new job or leave [the FDNY].”

(SAC ¶ 28.) Plaintiff further alleges that Chief Braun

“threatened” to assign Plaintiff to “a previous assignment” or

to a “field position.” (Id.)

After Plaintiff complained to another FDNY Chief, Chief

Pistilli, that she “felt very uncomfortable” with her September

9, 2021 interaction with Chief Braun, Plaintiff was informed

again by Chief Pistilli on September 10, 2021 that she would not

be able to participate in the H+H Paramedic Training Program if

she did not show proof of vaccination against COVID-19 pursuant

to H+H’s COVID-19 policy. (SAC ¶¶ 30-31.) Chief Pistilli

purportedly reassured Plaintiff that the FDNY would endeavor to

find or create a different role for her if she did not complete

the required training to become a paramedic. (Id.)

B. Plaintiff’s September 16, 2021 Exemption Request

On September 16, 2021, Plaintiff submitted a “Legal Notice

of Vaccination Exemption” to the Equal Employment Opportunity

office of the FDNY (the “FDNY EEO”) detailing her belief that

“she was being denied a civil service title based on a policy

from another agency,” H+H (the “September 16, 2021 Exemption

Request”). (SAC ¶ 32.) In the September 16, 2021 Exemption

Request, Plaintiff stated that she did “not authorize any

person, government, institution, organization, [or] business to

force PCR/COVID19 Testing” and that Plaintiff “decline[d] all

vaccinations or COVID 19 related testing . . . due to religious

reasons.” (ECF No. 9 at 58) (cleaned up). Plaintiff also cited

several legal authorities as the basis for the September 16,

2021 Exemption Request, including Title VII of the Civil Rights

Act, the Nuremberg Code, the Universal Declaration on Bioethics

and Human Rights, Article 7 of the Rome Statute of the

International Criminal Court, and a lawsuit before the United

States District Court for the Northern District of Alabama,

America’s Frontline Doctors, etc. et al v. Becerra, et al., 20-

cv-702(CLM), as well as several non-legal sources. (ECF No. 9

at 58-82.) In her September 16, 2021 Exemption Request,

Plaintiff did not mention an actual or perceived disability or

any other basis for objection that in any way relates to the

ADA.

On September 23, 2021 and in response to Plaintiff’s

September 16, 2021 Exemption Request, Plaintiff received a

letter from the FDNY EEO informing her that the FDNY was not

empowered to grant an exception to a vaccine mandate implemented

by another agency, H+H, as it relates to the H+H Paramedic

Training Program. (SAC ¶ 33); (ECF No. 9 at 84) (“the FDNY does

not grant exemptions from vaccine mandates of other entities,

including the NYC Health + Hospitals Corporation.”) The notice

further stated that to the extent Plaintiff’s September 16, 2021

affidavit sought exemption from any COVID-19-related policy of

the FDNY, “Plaintiff [was] not required to be vaccinated as a

condition of employment with the FDNY.” (ECF No. 9 at 84.)

Nevertheless, the notice reiterated that pursuant to the FDNY’s

COVID-19 policy, Plaintiff was required to show proof of a

negative COVID-19 test on a weekly basis if she chose to remain

unvaccinated. (Id.) To the extent Plaintiff sought exemption

from weekly testing in lieu of vaccination, the letter informed

Plaintiff that the requested exemption from both the FDNY’s

weekly testing requirement and the alternative option to show

proof of vaccination would pose an undue hardship on the FDNY.

(Id.) The FDNY denied Plaintiff’s September 16, 2021 Exemption

Request on that basis. (Id.)

C. Weekly Testing

Plaintiff alleges that around the same time she received

notice from the FDNY that her September 16, 2021 Exemption

Request had been denied, Plaintiff received an email from the

FDNY stating that she would be required to provide information

about her vaccination status by the week of September 20, 2021.2

(SAC ¶ 34.) The FDNY notice seeking information about FDNY

employees’ vaccination status was sent to all FDNY employees in

advance of the FDNY’s return to office starting on September 27,

2021. (ECF No. 9 at 89.) The online program through which all

FDNY employees were required to answer questions about their

vaccination status provided three options for FDNY employees to

self-identify as: (1) “vaccinated,” (2) “unvaccinated,” or (3)

“do not wish to disclose.” (ECF No. 9 at 89.) The policy

further noted that for the purpose of coordinating mandatory

weekly testing upon the FDNY’s “Return[] to full-time” work in

office “at all locations [on] Monday, September 27, 2021,”

employees who were either unvaccinated or did not wish to

disclose their vaccination status “[would] be considered

unvaccinated” and would be required to submit to weekly testing.

(ECF No. 9 at 89, 91.)

Plaintiff states that “at [this] moment she understood that

2 The Second Amended Complaint states September 30, 2021 as the date by which

FDNY employees would be required to provide information about their

vaccination status, but the informational email regarding the FDNY COVID-19

policy is dated September 19, 2021 and identifies the week of September 20,

2021 as the effective date. (ECF No. 9 at 89.)

her employer’s vaccination policy regarded her as an infection

threat and . . . [as] so impaired that she needed experimental

medical treatments to be allowed to work.” (SAC ¶ 34.)

Plaintiff alleges that, in accordance with the policy requiring

identification of each employee’s vaccination status and weekly

testing for unvaccinated employees and employees with

undisclosed vaccination statuses, she was “coerced” into

disclosing her status by the return-to-office deadline of

September 27, 2021 and “coerced” into beginning weekly testing

thereafter. (SAC ¶ 35.) Plaintiff alleges that she was

“threatened . . . with termination” if she did not submit to

weekly testing, in accordance with the FDNY’s return-to-office

policy and that, starting on October 1, 2021, she began to

submit to weekly testing “under duress.” (SAC ¶¶ 36-37.)

Plaintiff alleges that during this time period, she “was

excluded from her unit and from work-related events.” (SAC ¶

40.) Plaintiff also alleged that she was harassed and cited

comments from her supervisors explaining that they were “running

[] a tab” of employees that required weekly testing and “jokes”

from certain colleagues revealing their belief that unvaccinated

individuals were more susceptible to contracting and spreading

COVID-19 as evidence of harassment. (SAC ¶ 41.)

D. Plaintiff’s October 27, 2021 Exemption Request

On October 20, 2021, pursuant to an executive order from the

Mayor of the City of New York requiring a “COVID-19 vaccination

. . . for all City workers,” the FDNY sent notice to all its

employees, including Plaintiff, that “all members of the FDNY

[would] be required to provide proof of at least one dose of

COVID-19 vaccin[ation] by November 1, 2021.” (ECF No. 9 at

120.)

The next week, on October 27, 2021, Plaintiff submitted

another “Legal Notice of Vaccination Exemption” (the “October

27, 2021 Exemption Request”). (SAC ¶ 44.) In her affidavit,

Plaintiff explained that “the vaccination POLICY force[d] [her]

to choose between [] continued employment [] and [] moral

convictions . . . [and] beliefs” as a member of “a community

church of like-minded men and woman standing collectively and

peaceably to preserve the natural and unalienable rights and

freedoms afforded . . . by Nature’s God.” (ECF No. 9 at 122-

23.) As in her first Exemption Request, dated September 16,

2021, Plaintiff cited several legal authorities as the bases for

her exemption request, including the Federal Food, Drug, and

Cosmetic Act, the Fifth and Fourteenth Amendments to the United

States Constitution, the Civil Rights Act of 1964, the Health

Insurance Portability and Accountability Act of 1996 (“HIPAA”),

and the Nuremburg Code. (ECF No. 9 at 123-26.) Plaintiff

stated clearly and consistently that she “[did] not consent to

forced vaccination for religious reasons, among other[]” reasons

(ECF No. 9 at 126), and elaborated that “[i]t is against [her]

faith and [] principled religious beliefs to accept compulsory,

forced, mandated, or other coerced health measures of any kind.”

(ECF No. 9 at 131.)

Plaintiff also informed “several supervisors” that she

wanted to transfer to another unit because she felt

“uncomfortable working with Chief Braun,” because she felt “left

out of her unit,” and because she was concerned that she was

being “pushed out” of her position. (SAC ¶ 45.) Plaintiff

received a letter from the FDNY EEO on December 14, 2021

informing her that her October 27, 2021 Exemption Request had

been denied. (SAC ¶ 46) (ECF No. 9 at 135.) Plaintiff also

received supplemental notice from the City, dated January 5,

2022, that specifically addressed Plaintiff’s request for an

exemption on the basis of her religious and moral opposition to

COVID-19 precautions. See (ECF No. 9 at 144) (Plaintiff’s

“request for a religious exemption from the vaccine mandate was

denied because the asserted religious basis seeking the

exemption was insufficient in light of the potential undue

hardship to the [FDNY].”) Both the original notice denying

Plaintiff’s October 27, 2021 and the supplemental notice

specifically addressing Plaintiff’s religious and moral

opposition outlined the procedure for appealing the City’s

decision. (SAC ¶ 46.)

Plaintiff acknowledges that the appeal process with respect

to her exemption request did not claim that cognizable rights

under the ADA were at issue. (SAC ¶ 48.) Instead, Plaintiff

understood that the exemption request pertained only to

religious or medical exemptions. (Id.) Plaintiff appealed the

denial and was later informed that the “New York City Appeals

Panel” had denied her appeal in a letter dated April 6, 2022.

(ECF No. 9 at 186.)

E. Plaintiff’ December 20, 2021 ADA Notice

Following the original notice on December 14, 2021 denying

Plaintiff’s October 27, 2021 Exemption Request, Plaintiff

submitted a “Notice of discrimination and harassment based upon

disability” on December 20, 2021 (the “December 20, 2021 ADA

Notice”) wherein she outlined her belief that she had been

improperly “regarded as” disabled by the FDNY based on her

unvaccinated status as well as the perception that she had “an

impaired immune system and impaired respiratory system.” (SAC ¶

47.) In her December 20, 2021 ADA Notice, Plaintiff explicitly

notes that she was no longer “fil[ing] a ‘medical’ or

‘religious’ exemption” request because she believed herself to

be “‘exempt’ from the new policy.” (ECF No. 9 at 140.) Indeed,

Plaintiff confirms in a later “charge of discrimination”

describing the December 20, 2021 ADA Notice that she “[had] not

[ever] requested reasonable modifications” with respect to her

December 20, 2021 ADA Notice. (ECF No. 9 at 162.)

F. Plaintiff’s Continued Failure to Comply with the

City’s COVID-19 Policy

Based on Plaintiff’s failure to comply with the H+H vaccine

mandate, Plaintiff was denied another opportunity to participate

in the H+H Paramedic Training Program in February 2022. (SAC ¶

49.) Plaintiff alleges that she was also “excluded from

activities and . . . events,” “given less work, and excluded

from conversations.” (SAC ¶ 50.) Plaintiff also alleges that

she was “continuously harassed . . . to take weekly PCR tests

under the threat of being terminated,” in accordance with the

FDNY’s weekly testing requirement for unvaccinated employees.

(SAC ¶¶ 51-52.)

Following the April 7, 2022 denial of Plaintiff’s appeal,

Plaintiff alleges that, on April 26, 2022, she was informed she

had been placed on LWOP status due to her failure to comply with

the City’s COVID-19 vaccine mandate, which was announced on

October 20, 2021 and went into effect on November 1, 2021.

Finally, in June 2022, Plaintiff received a letter dated June 9,

2022 informing her that because of Plaintiff’s “failure to

comply with the New York City Health Commissioner’s Order

requiring vaccination of all City of New York employees,”

Plaintiff was terminated as of June 10, 2022. (SAC ¶ 58) (ECF

No. 9 at 200.)

II. Procedural Background

On June 17, 2022, Plaintiff filed her original Complaint,

which named Plaintiff’s former employer, the FDNY as the sole

Defendant. On October 12, 2022, Plaintiff filed an Amended

Complaint, which also named the FDNY as the sole Defendant.

After a January 17, 2023 Pre-Motion Conference wherein the

FDNY’s counsel was instructed to identify the proper defendant

and inform the Court, the Court granted leave for Plaintiff to

file a Second Amended Complaint to name the City as the sole

Defendant. (Jan. 23, 2023 Order.) Accordingly, on January 23,

2023, the Second Amended Complaint became the operative

pleading.

LEGAL STANDARD

I. Motion to Dismiss

To survive a motion to dismiss pursuant to Rule 12(b)(6),

the Second Amended Complaint must contain sufficient factual

matter, accepted as true, to “state a claim to relief that is

plausible on its face.” Aschroft 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. Melendez v. City of New York, 16 F.4th 992,

1010 (2d Cir. 2021). Pleadings “filed by pro se litigants,”

require the Court to construe the pleadings “liberally and

interpret them to raise the strongest arguments that they

suggest.” Hunter v. McMahon, 75 F.4th 62, 67 (2d Cir. 2023)

(internal quotation marks and citation omitted). 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). Moreover, the Court “cannot invent factual

allegations that [the plaintiff] has not pled.” Chavis v.

Chappius, 618 F.3d 162, 170 (2d Cir. 2010).

The Court may refer to “documents attached to [the

complaint] or incorporated in it by reference, documents

‘integral’ to the complaint and relied upon in it, and facts of

which judicial notice may properly be taken.” Grant v. County

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 “reliance on the terms and effect of a

document in drafting the complaint is a necessary prerequisite

to the court’s consideration of the 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).” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,

75 (2d Cir. 1998). Finally, the Court will not accept factual

allegations that are “contradicted by other matters asserted or

relied upon or incorporated by reference by a plaintiff in

drafting the complaint.” Tsinberg v. City of New York, No. 20-

cv-749 (PAE), 2021 WL 1146942, at *4 (S.D.N.Y. Mar. 25,

2021) (quoting Fisk v. Letterman, 401 F. Supp. 2d 362, 368

(S.D.N.Y. 2005)).

II. ADA

A. Discrimination

The ADA prohibits employers from “discriminat[ing] against

a qualified individual on the basis of disability” in hiring,

compensating, training, advancing, or discharging, or in any

“other terms, conditions, and privileges of employment.” 42

U.S.C. § 12112(a). At the motion to dismiss stage, Plaintiff

may establish a prima facie case of disability discrimination

under the ADA by showing that:

(1) the employer is subject to the ADA; (2) the plaintiff

is disabled within the meaning of the ADA or perceived

to be so by her employer; (3) [the plaintiff] was

otherwise qualified to perform the essential functions

of the job with or without reasonable accommodation; (4)

[the plaintiff] suffered an adverse employment action;

and (5) the adverse action was imposed because of [the

plaintiff's] disability.

Davis v. New York City Dep’t of Educ., 804 F.3d 231, 235 (2d

Cir. 2015). ADA discrimination claims are subject to the

burden-shifting analysis established by the United States

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Under that framework, Plaintiff must first “establish a

prima facie case” of discrimination. Cortes v. MTA N.Y.C.

Transit, 802 F.4d 226, 231 (2d Cir. 2015). If she does so,

Plaintiff’s employer must then offer evidence of “a legitimate

non-discriminatory reason” for the allegedly adverse employment

action, at which point the “burden of persuasion” shifts back to

Plaintiff to produce evidence demonstrating “that the proffered

reason is [] pretext[ual].” Id. (internal quotation marks and

citation omitted).

B. Retaliation

The ADA makes it unlawful to retaliate “against any

individual because such individual has opposed any act or

practice made unlawful by [the ADA] or because such individual

made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing” pursuant to

the ADA. 42 U.S.C. § 12203(a); see also Sarno v. Douglas

Elliman-Gibbons & Inves., Inc. 183 F.3d 155, 159 (2d Cir. 1999)

(“The ADA prohibits, inter alia, retaliation against any

individual who has asserted rights under the ADA.”). In order

to make out a prima facie case of retaliation under the ADA,

Plaintiff must allege that “(1) she engaged in an activity

protected by the ADA; (2) the employer was aware of this

activity; (3) the employer took an adverse employment action

against her; and (4) a causal connection exists between the

alleged adverse action and the protected activity.” Treglia v.

Town of Manilus, 313 F.3d 713, 719 (2d Cir. 2002) (noting that

“[c]laims for retaliation under the ADA are analyzed under the

same burden-shifting framework established for Title VII

cases.”) (internal quotation marks and citations omitted).

DISCUSSION

As an initial matter, federal courts throughout the Second

Circuit have approved vaccine mandates as a lawful condition of

employment, and this Court and the Second Circuit have approved

the particular vaccine mandate at issue in this case, which is

the same vaccine mandate at issue in the case of Garland v. New

York City Fire Dep’t, 574 F. Supp. 3d 127 (E.D.N.Y. 2021),

aff’d, No. 23-662-CV, 2024 WL 445001 (2d Cir. Feb. 6, 2024).

“Both [the Second Circuit] and New York state courts have held

that vaccination is a ‘condition of employment’” Garland, 2024

WL 445001, at *3 (internal citation omitted), and that the

City’s COVID-19 vaccination requirement, which was implemented

by the FDNY starting on November 1, 2021, “satisfied the minimum

standards set by the federal constitution.” Id. at *5.

Although Garland examined the City’s vaccine mandate in the

context of a due process claim, several courts throughout this

Circuit have rejected claims that employers’ COVID-19 vaccine

mandates violated the ADA as well. See Mone v. New York State

Unified Court System, No. 21-cv-9614 (DG)(LB), 2023 WL 4424093

(E.D.N.Y. Mar. 22, 2023), report and recommendation adopted, No.

21-cv-6914 (DG), 2023 WL 4073770 (E.D.N.Y. June 20, 2023),

aff'd, No. 23-964-CV, 2024 WL 1109258 (2d Cir. Mar. 14, 2024);

Apuzza v. NYU Langone Long Island, No. 22-cv-7519 (NJC), 2023 WL

90227910 (E.D.N.Y. Dec. 29, 2023); Newell v. State Univ. of New

York Westchester Cmty. Coll., No. 22-cv-8524 (PMH), 2023 WL

4082030 (S.D.N.Y. June 20, 2023). Plaintiff’s repeated

contention in her Second Amended Complaint and in her opposition

brief that the COVID-19 precautions implemented by Defendant in

response to the COVID-19 pandemic were generally “illegal” are

without merit. Nevertheless, the Court examines Plaintiff’s

factual allegations regarding disability discrimination and

retaliation as set forth below.

I. Discrimination

Plaintiff carries the initial burden of making out a prima

facie case of discrimination under the ADA, which requires a

showing that (1) “[Plaintiff’s] employer is subject to the ADA;”

(2) “[Plaintiff] is disabled within the meaning of the ADA or

perceived to be so by [her] employer;” (3) “[Plaintiff] was

otherwise qualified to perform the essential functions of the

job with or without reasonable accommodation;” and (4)

“[Plaintiff] suffered an adverse employment action because of

[her] disability.” Brady v. Wal-Mart Stores, Inc., 531 F.3d

127, 134 (2d Cir. 2008).

With respect to the second prong, Plaintiff may establish a

qualifying disability by alleging that she was “regarded as

having [] an impairment” by her employer pursuant to 42 U.S.C. §

12102(1)(C).3 An individual is “regarded as having [] an

impairment” if she has “been subjected to [a prohibited action]

because of an actual or perceived physical or mental impairment”

except for any “transitory impairment[.]” 42 U.S.C. §§

12102(3)(A)–(B). A “transitory impairment” is one “with an

actual or expected duration of 6 months.” 42 U.S.C. §

12102(3)(B). Where, as here, “plaintiff brings a claim on the

basis that [her] employer regarded [her] as disabled, the

decisive issue is the employer’s perception of [Plaintiff’s]

alleged impairment.” Devany v. United Parcel Service, Inc., No.

3 It is axiomatic that Plaintiff carries the initial burden of proof to

establish a prima facie case of discrimination, including to establish that

she was “regarded as” disabled pursuant to 42 U.S.C. § 12102(1)(C).

Plaintiff appears to misunderstand the governing standard, as reflected in

the Second Amended Complaint. See (SAC ¶ 61) (“where[] the plaintiff is

proceeding under both the ‘regarded as’ and the ‘record of’ prongs of the ADA

. . . the burden of proof is upon the defendant to prove that it qualified

for an exemption or exception to their legal duties to comply with the ADA.”)

Plaintiff asserts an incorrect statement of law. Plaintiff must allege

sufficient facts to establish that Defendant “regarded” Plaintiff as

disabled, in addition to each of the other elements of the five-factor test

for discrimination under the ADA. See Apuzza v. NYU Langone Long Island, No.

22-cv-7519 (NJC), 2023 WL 9022790, at *3 (E.D.N.Y. Dec. 29, 2023) (noting

that the plaintiff’s nearly identical misstatement of law regarding “which

party bears the initial burden” of proof “is incorrect.”)

18-cv-6684 (PGG), 2021 WL 4481911, at *12 (S.D.N.Y. Sep. 30,

2021) (citing Sacks v. Gandhi Eng’g Inc., 999 F. Supp. 2d 629,

633 (S.D.N.Y. 2014)).

As an initial matter, Plaintiff argues that the question of

whether Plaintiff has adequately alleged a qualifying disability

should not be so decisive in the instant case. Instead,

Plaintiff argues the Court should focus on “the merits of [her]

discrimination claim” as opposed to “the question of whether the

plaintiff is an individual with a disability” or is an

individual that is regarded as having a disability. (Ptf. Opp.

at 29.) However, the interpretive guidance that Plaintiff cites

encourages courts to construe “[t]he definition [of disability]

. . . broadly in favor of expansive coverage,” not to dispense

all together with the inquiry of whether a qualifying disability

exists. In the instant case, Plaintiff’s allegation of

discrimination on the basis of an alleged disability hinges on

whether she has pleaded sufficient facts to establish that she

has been regarded as disabled by Defendant. Without a

qualifying disability, the Court has no lens through which to

examine Plaintiff’s allegations of discrimination. Accordingly,

in light of Plaintiff’s own factual assertion that she was

regarded as disabled by Defendant and that she was discriminated

against on the basis of that alleged perceived disability, the

question of whether Plaintiff alleged sufficient facts that she

was in fact regarded as disabled by Defendant is dispositive.

In the Second Amended Complaint, Plaintiff generally

alleges that Defendant’s COVID-19 “policy regarded [her] as

disabled because of [her] unvaccinated status.” (SAC ¶ 7.)

Plaintiff explains that she was regarded “as disabled with a

communicable disease and significantly impaired . . . immune and

respiratory systems” by virtue of her unvaccinated status. (SAC

¶ 2.) Plaintiff’s theory of disability has been raised and

rejected numerous times in courts throughout the Second Circuit

and beyond. See Apuzza, 2023 WL 9022790, at *4 (rejecting

Plaintiff’s assertion that her employer’s COVID-19 “policy

regards all untreated employees as disabled with a deadly

contagious disease without relying upon any individualized

assessment . . . because it is illogical that an employer would

regard all of their employees as disabled.”) (internal quotation

marks omitted); Mone, 2023 WL 4424093, at *9 (“That an employer

requires an employee to follow generally applicable COVID-19

safety rules and enforces those policies when an employee fails

to comply does not, without more, support the inference that the

employer regards the employee as disabled.”); Johnson v. Mount

Sinai Hospital Group, Inc., No. 22-cv-2936 (AMD), 2023 WL

2163774, at *5 (E.D.N.Y. Feb. 22, 2023) (rejecting plaintiff’s

assertion that she was regarded as having “an impaired immune

system and an impaired respiratory system[]” as “unreasonable”

in light of the fact that “defendant’s COVID-19 policies were

applicable to all of its employees, except those with legitimate

exemption, as required by law.”)

As set forth in each of these decisions, Plaintiff’s

allegation that she was subject to the same COVID-19 precautions

to which all City employees were subject is irreconcilable with

the contention that Plaintiff was regarded as disabled by

Defendant by virtue of her noncompliance with respect to those

universally applied COVID-19 precautions. First, Plaintiff’s

assertion that the policy regarded her as disabled because of

her “impaired or suppressed immune system that made [her] prone

to contracting COVID-19” does not constitute “an actual or

perceived physical or mental impairment” under the ADA. 42

U.S.C. § 12102(3)(A). See D’Cunha v. Northwell Health Sys., No.

22-cv-988 (MKV), 2023 WL 2266520, at *5 (S.D.N.Y. Feb. 28, 2023)

(noting that Plaintiff’s “assertion[] that she was perceived as

being ‘impaired in her immunity’” relates to a future risk, but

does not constitute an allegation “that she was regarded as

presently having a disability.”) (emphasis in original). Even

to the extent Plaintiff seeks to define the alleged disability

as relating to a present impairment rather than a risk of future

impairment, neither contracting COVID-19 nor being unvaccinated

are considered disabilities under 42 U.S.C. § 12102(3)(A). See

Apuzza, 2023 WL 9022790, at *4 (“Federal courts generally agree

that a COVID-19 infection is not a disability. Nor is the

plaintiff’s vaccination status a disability.”) (internal

quotation marks and citations omitted).

Plaintiff argues that previous decisions regarding whether

COVID-19 constitutes a disability under the ADA fail to take

into account the reality that “long-COVID” is neither transitory

nor minor for those who suffer from prolonged complications.

(Pft. Opp. at 30.) Though Plaintiff raises an interesting

question for the consideration of future courts, this Court need

not delve into the hypothetical question of how the ADA should

treat long-Covid because Plaintiff has not alleged that she has

ever suffered from long-COVID, or that she was either disabled

by long-COVID or regarded as disabled by long-COVID.4

4 Plaintiff argues that “defendant never performed an individualized

assessment of the plaintiff so there is no basis to claim the defendant

perceives plaintiff as having a mild case of COVID but not ‘long-COVID’.”

(Ptf. Opp. at 30.) Plaintiff alleges that any argument that an impairment is

“transitory and minor” is “a defense for which the defendant bears the burden

[of proof], rather than an element of the [plaintiff’s] pleading

requirement.” (Ptf. Opp. at 30.) This statement again is based on a

misunderstanding of the standard for a sufficient pleading of a prima facie

discrimination claim under the ADA. Even if Defendant bears the burden of

raising any applicable defenses to the allegations in the Second Amended

Complaint, including any argument regarding the transitory and minor nature

of an alleged impairment, Plaintiff did not make any allegations relating to

long-COVID in the Second Amended Complaint. Neither did Plaintiff allege

that she ever contracted COVID-19 or long-COVID. Indeed, Plaintiff contends

that “she never tested positive for COVID.” (AC ¶ 52.) Importantly,

Plaintiff does not allege that a COVID-19 or long-COVID diagnosis was the

basis for Defendant’s allegedly regarding her as disabled. Plaintiff only

alleged that her unvaccinated status, her immune and respiratory systems, and

the contagion threat she posed to others by virtue of her unvaccinated status

were the bases for the alleged disability. In any event, Defendant cannot

assert a defense to a hypothetical allegation it was not made aware of until

Plaintiff’s opposition brief and the Court need not consider an allegation

absent from “the [second] amended complaint . . . [] raised for the first

time in opposition” to the motion to dismiss. Gonzalez v. Dist. Council 37,

Because Plaintiff has failed to allege sufficient facts to

establish that she was regarded as disabled by Defendant,

Plaintiff fails to state a claim for discrimination under the

ADA. Consequently, Plaintiff’s ADA discrimination claim is

dismissed.

II. Retaliation

As set forth previously, to state a claim for retaliation

under the ADA, Plaintiff must plausibly allege that she (1)

engaged in a protected activity that (2) Defendant was aware of,

(3) she suffered an adverse employment action, which was taken

by Defendant against her, and that (4) there is a causal

connection between her participation in protected activity and

the resulting adverse employment action. See Caskey v. County

of Ontario, 560 F. App'x 57, 58 (2d Cir. 2014). The Second

Circuit has repeatedly affirmed that courts may “analyze a

retaliation claim under the ADA using the same framework

employed in Title VII cases.” Lovejoy-Wilson v. NOCO Motor

Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001).

At the outset, the nature of what protected activities

Plaintiff alleges she engaged in and what adverse employment

actions Plaintiff allegedly suffered bears clarification. Based

on the Court’s liberal construction of the Second Amended

AFSCME, AFL-CIO, SSEU Loc. 371, 843 F. App'x 361, 363 (2d Cir. 2021).

Complaint, Plaintiff has failed to allege a causal connection

between the alleged adverse employment actions and her

engagement in protected activity. To the contrary, Plaintiff

alleges facts suggesting that any such inference of causality is

impossible.

A. Protected Activity

Protected activity is defined as an activity opposing an

employment practice that is either unlawful under the ADA or

that Plaintiff had a “good faith, reasonable belief” was

unlawful under the ADA. Treglia, 313 F.3d 713, 719 (2d Cir.

2002).

Plaintiff’s December 20, 2021 ADA Notice clearly

constitutes protected activity under the ADA insofar as

Plaintiff provided notice to Defendant of alleged

“discrimination and harassment based upon disability.” (SAC ¶

45.) Plaintiff argues in opposition to Defendant’s motion to

dismiss, that she engaged in protected activity prior to her

December 20, 2021 ADA Notice, starting from August 2021. (Ptf.

Opp. at 35.) Specifically, Plaintiff argues that she “objected

consistently and continually, seeking assistance and redress . .

. because [she] opposed the violation of her personal property

rights . . . such as medical privacy, informed consent, right to

a discrimination-free and retaliation-free workplace, right to

refuse medical experiments and the right to refuse non-job

related medical treatments and inquiries.” (Ptf. Opp. at 35.)

Plaintiff further notes that “[s]he had meetings with her

superiors, she expressed concern that she lost her previous

position because of a medical treatment that was not related to

her job . . . she expressed her concerns about the treatment’s

effect on her ability to have children, she discussed that she

didn’t want to be treated differently because of ‘vaccine

status’” and she “asked for written proof of liability if she

took these treatments[.]” (Id.)

There is no mention in the Second Amended Complaint of

Plaintiff objecting to Defendant’s COVID-19 precautions in

August 2021 informally or formally. The first mention of an

informal objection to the COVID-19 precautions is on September

9, 2021 at which point Plaintiff alleges that she informed Chief

Braun of “her choice to remain unvaccinated” and that “her

hesitation was both religious in nature and [because] no studies

had been conducted to study the impact of the vaccines on

fertility.” (SAC ¶ 27.) Plaintiff clarified in her Pre-Motion

response that she was not alleging religious discrimination.

(ECF No. 11 at 7.) Plaintiff’s allegations that she generally

objected to the implementation of COVID-19 precautions in the

context of “uncomfortable” conversations with her supervisor

also does not amount to a reasonably held belief that those

COVID-19 precautions were discriminatory under the ADA. (SAC ¶

20); See Kelly v. Howard I. Shapiro & Associates Consulting

Engineers P.C., 716 F.3d 10, 15 (2d Cir. 2013) (“A plaintiff’s

belief . . . is not reasonable because he or she complains of

something that appears to be discrimination in some form” if

Plaintiff’s alleged “objections at the time neither point[] out

discrimination against particular individuals nor discriminatory

practices by” Defendant under the ADA); Drumm v. Suny Geneseo

College , 486 F. App’x 912, 914 (2d Cir. 2012) (explaining that

“allegations that [plaintiff’s] supervisor ‘berated’ her and

made other harsh comments . . . amount only to general

allegations of mistreatment, and do not support an inference

that plaintiff had a reasonable good faith belief that she was

subject to [] discrimination.”). Plaintiff’s proffered

explanation for her objections specifically related to religion

– not disability, and she has abandoned her religion-based

claims.

Plaintiff also refers to her September 16, 2021 Exemption

Request and October 27, 2021 Exemption Request, both of which

set forth several legal bases for her opposition to Defendant’s

COVID-19 precautions, including Title VII of the Civil Rights

Act, the Nuremberg Code, the Universal Declaration on Bioethics

and Human Rights, Article 7 of the Rome Statute of the

International Criminal Court, the Federal Food, Drug and

Cosmetic Act, the Fifth and Fourteenth Amendments to the United

States Constitution, HIPAA, and a lawsuit before the United

States District Court for the Northern District of Alabama,

America’s Frontline Doctors, etc. et al v. Becerra, et al., 20-

cv-702(CLM), as well as several non-legal sources. (ECF No. 9

at 58-82, 123-26.) Here too, Plaintiff points to objections

that reference Plaintiff’s religious and moral beliefs as the

basis for her opposition to Defendant’s COVID-19 precautions.

See (ECF No. 9 at 58) ( “I . . . do not authorize any person . .

. to force PCR/COVID 19 testing or inoculation upon my flesh . .

. due to religious reasons”) (cleaned up); (ECF No. 9 at 122-23)

(Defendant’s “vaccination policy forces me to choose between my

continued employment here and my moral convictions to decline

any term of employment that is inconsistent with my beliefs . .

. I have joined forces with a community church of like-minded

men and women . . . to preserve the natural and unalienable

rights and freedoms afforded to us by Nature’s God.”)

Plaintiff’s complaints regarding Defendant’s COVID-19

precautions were consistently moral in nature up until December

20, 2021 when Plaintiff notified the FDNY that she believed

Defendant’s COVID-19 precautions constituted discrimination

under the ADA.

As previously noted, the Court construes pleadings filed by

pro se litigants “liberally and interpret them to raise the

strongest arguments that they suggest.” Hunter v. McMahon, 75

F.4th 62, 67 (2d Cir. 2023) (internal quotation marks and

citation omitted). Even construing Plaintiff’s Second Amended

Complaint liberally, however, until Plaintiff submitted the

December 20, 2021 ADA Notice, there is nothing in the Second

Amended Complaint to infer that Plaintiff’s expression of

opposition to Defendant’s COVID-19 precautions or her efforts to

seek exemption from the October 20, 2021 vaccine mandate were

based on a good faith, reasonable belief that Defendant’s COVID-

19 precautions violated the ADA, as opposed to the dozen other

laws cited by Plaintiff. The factual assertions in the Second

Amended Complaint and the exhibits to the Second Amended

Complaint, which reflect Plaintiff’s contemporaneous

communications and complaints to the FDNY, all suggest that

Plaintiff did not oppose Defendant’s COVID-19 precautions on the

basis of Defendant’s regard for Plaintiff as disabled.

Plaintiff provides no legal authority for the proposition that

seeking exemption from COVID-19 precautions on the basis of her

alleged moral or religious beliefs, or on the basis of any of

the dozen other legal authorities cited in her September 16,

2021 and October 27, 2021 Exemption Requests, constitute

protected activity under the ADA. Nor does Plaintiff allege in

the Second Amended Complaint that she reasonably believed her

opposition to Defendant’s COVID-19 precautions related to the

ADA until the December 20, 2021 ADA Notice. Indeed, any such an

assertion would be unreasonable in light of Plaintiff’s specific

citation to other laws.

Accordingly, based on the factual allegations in the Second

Amended Complaint, which the Court construes liberally,

Plaintiff’s assertion that she “exercised her right to refuse

the defendant’s COVID-19 policy measures based upon a good faith

belief that the policy . . . [violated] the ADA” (SAC ¶ 149),

constitutes an assertion that plaintiff engaged in protected

activity as of December 20, 2021.

B. Adverse Employment Actions

An adverse employment action is defined as “a materially

adverse change in the terms, privileges, duration and conditions

of employment.” Treglia, 313 F.3d at 720. Typically,

“discharge, refusal to hire, refusal to promote, demotion,

reduction in pay, and reprimand” have been found to constitute

adverse employment actions in a case alleging retaliation under

the ADA. Preda v. Nissho Iwai Am. Corp., 128 F.3d 789, 791 (2d

Cir. 1997).

Plaintiff alleges that she suffered from several adverse

employment actions, including “loss or threatened loss of pay,

isolation [and] segregation, diminished employment

opportunities, interference with her rights and termination of

her employment.” (SAC ¶ 153.) Plaintiff elaborates in her

opposition brief that she also suffered from the following

adverse employment actions: “conditions of her leave were

changed,” “opportunities for advancement were diminished,”

“conditions of access were changed,” “new qualification

standards were imposed based upon medical treatments,” “medical

privacy was diminished,” “disparate treatment was imposed based

upon ‘treatment status,’” her “position was diminished,” the

“ability for meaningful redress was diminished,” opportunities

for “participation in work events” were diminished, “rights

protected under the ADA” were interfered with, and finally,

Plaintiff was terminated. (Ptf. Opp. at 32.)

The Court construes Plaintiff’s factual assertions

regarding adverse employment actions to fall into three

categories: (1) Defendant’s imposition of certain restrictions

and requirements pursuant to its COVID-19 precautions, including

weekly testing and the requirement that Plaintiff reveal her

COVID-19 vaccination status, (2) Plaintiff’s allegedly

diminished opportunities for training and advancement,

particularly as it relates to the H+H Paramedic Training

Program, and (3) Plaintiff’s LWOP status and termination.

1. Defendant’s COVID-19 Precautions

Plaintiff first alleges that Defendant’s COVID-19 policy

itself constitutes an adverse employment action because

Defendant’s COVID-19 precautions effectuated a “materially

adverse change in the terms and conditions of [Plaintiff’s]

employment.” (SAC ¶ 156.) In describing Defendant’s COVID-19

precautions, Plaintiff refers to the FDNY’s masking requirement

and weekly testing leading up to November 1, 2021 and

eventually, the City’s vaccine mandate starting in November

2021. The Court also understands Plaintiff’s assertion

regarding Defendant’s COVID-19 policy to refer to the manner in

which the policy was carried out, including Plaintiff’s

“isolation” and “segregation” from others as it relates to work

events; repeated efforts to ensure Plaintiff’s compliance with

the FDNY’s weekly testing requirement, which Plaintiff alleges

was a form of harassment; jokes made by coworkers regarding

their belief that the COVID-19 vaccine protects against

contracting and spreading COVID-19; and Plaintiff’s September 9,

2021 discussion with Chief Braun wherein he told Plaintiff that

“she could either take the vaccine and get paramedic training or

go back to recruitment to find a new job or leave [the FDNY].”

(SAC ¶ 28.) With respect to Plaintiff’s allegations of social

isolation or “jokes” from co-workers regarding her unvaccinated

status, “[i]t is unlikely that isolation and segregation

constitute materially adverse changes to Plaintiff's employment”

Sharikov v. Philips Med. Sys. MR, Inc., 659 F. Supp. 3d 264, 281

(N.D.N.Y. 2023), or that “being given the proverbial cold

shoulder by one's coworkers” or “being left out of meetings”

amounts to an adverse employment action. McCullough v. Xerox

Corp., 942 F. Supp. 2d 380, 387 (W.D.N.Y. 2013).

Nevertheless, even assuming, arguendo, that the overall

changes in Plaintiff’s employment experience constitute an

“adverse employment action,” it would be unreasonable to infer

that the alleged changes were caused by Plaintiff’s engagement

in protected activity on December 20, 2021, as opposed to being

caused by the COVID-19 pandemic and Defendant’s attempt to

respond to the COVID-19 pandemic by virtue of its COVID-19

precautions, all of which predated any protected activity.

Indeed, Plaintiff does not allege in the Second Amended

Complaint or otherwise that Defendant’s COVID-19 precautions

were caused by her December 20, 2021 Notice, or any of the other

alleged protected activities, including either the September 16,

2021 or October 27, 2021 Exemption Requests. To the extent

Plaintiff alleges that Defendant’s COVID-19 precautions, as

applied to her, were caused by her failure to conform to those

precautions, the COVID-19 precautions predate Plaintiff’s

failure to comply and she was put on notice of the consequences

for her failure to comply at the time each successive precaution

was announced and implemented. See e.g., (SAC ¶ 24) (Plaintiff

was informed, for the second time, on September 9, 2021, that

“she would lose her seat in the [H+H Paramedic Training Program]

if she did not” show proof of vaccination against COVID-19.);

(SAC ¶ 33, ECF No. 9 at 84) (Plaintiff was informed that,

pursuant to the FDNY’s policy, upon return to the office on

September 27, 2021, Plaintiff would either have to show proof of

a COVID-19 vaccination or submit to weekly COVID-19 testing);

(SAC ¶ 34) (ECF No. 9 at 89) (Plaintiff received a letter dated

September 19, 2021 explaining that “employees who are

unvaccinated or do not wish to disclose their status will be”

required to submit to weekly COVID-19 testing); (SAC ¶ 34) (ECF

No. 9 at 120) (Plaintiff received a letter dated October 20,

2021 advising that pursuant to the “COVID-19 vaccin[e] mandate

for all City workers” pronounced by the Mayor of the City of New

York, “unvaccinated employees will be placed on unpaid leave

until they provide proof of vaccination to the Department.”)

Accordingly, Defendant’s COVID-19 precautions cannot be

causally linked to Plaintiff’s December 20, 2021 ADA Notice.

2. H+H Paramedic Training

Second, Plaintiff alleges that her inability to participate

in the H+H Paramedic Training Program on the basis of her

unvaccinated status, of which she was informed for the second

time on September 9, 2021 (SAC ¶ 24)5, constitutes an adverse

employment action.

As an initial matter, the vaccine mandate implemented by

5 Plaintiff does not allege the date on which she was first informed that she

would not be able to participate in the H+H Paramedic Training Program on the

basis of her unvaccinated status.

H+H with respect to H+H training programs cannot be attributed

to the City because they are two separate governmental entities.

See De’Bey v. City of New York, No. 20-cv-1034 (PGG)(SLC), 2021

WL 8013765, at *19 (S.D.N.Y. Oct. 26, 2021), report and

recommendation adopted, No. 20-cv-1034 (PGG), 2022 WL 909790

(S.D.N.Y. Mar. 29, 2022) (“New York courts consistently have

held that the City is a separate legal entity from [H+H].”)

(internal citation omitted).

In any event, Plaintiff’s inability to participate in the

H+H Paramedic Training Program predates any alleged protected

activity by Plaintiff. As previously noted, Plaintiff did not

engage in protected activity until the December 20, 2021 ADA

Notice. Even Plaintiff’s September 16, 2021 and October 27,

2021 Exemption Requests were submitted after the date on which

Plaintiff received notice that she would not be permitted to

participate in the H+H Paramedic Training Program if she

remained unvaccinated in violation of the H+H vaccine mandate,

which was implemented in August 16, 2021. See (SAC ¶ 24)

(Plaintiff was informed that vaccination against COVID-19 was a

requirement for participation in the H+H Paramedic Training

Program in accordance with an August 16, 2021 pronouncement by

the Governor of the State of New York that “all healthcare

workers in New York State” must be vaccinated); (SAC ¶ 26) (On

September 9, 2021, Plaintiff was again informed that “she would

lose her seat in the [H+H Paramedic Training Program] if she did

not” show proof of vaccination against COVID-19).

Accordingly, Plaintiff has not alleged a plausible causal

connection between her December 20, 2021 ADA Notice and her

inability to participate in the H+H Paramedic Training Program.

3. LWOP and Subsequent Termination

The last alleged adverse employment actions relate to

Plaintiff’s LWOP status on April 26, 2022 and subsequent

Termination on approximately June 10, 2022. “There can be no

dispute that Plaintiff’s termination was a materially adverse

change in the terms and conditions of [her] employment.” Davis,

804 F.3d at 235.

Even so, Plaintiff again fails to allege a causal

connection between her LWOP status and termination, on the one

hand, and her December 20, 2021 protected activity, on the other

hand. Plaintiff’s failure to comply with Defendant’s COVID-19

policy – not her December 20, 2021 ADA Notice – was clearly the

cause of her LWOP and subsequent termination. Indeed, Plaintiff

concedes that she was warned on several occasions that her

continued failure to comply with Defendant’s COVID-19

precautions, absent an approved exemption, would result in her

termination.

Where, as here, the consequences for an individual’s non-

compliance with a lawful employment policy, such as Defendant’s

COVID-19 precautions, were established before the alleged

protected activity occurred, courts routinely dismiss

retaliation claims for lack of causation. See Johnson v. Mount

Sinai Hospital Group, Inc., No. 22-cv-2936 (AMD), 2023 WL

216963774, at *7 (E.D.N.Y. Feb. 22, 2023) (“While the

plaintiff’s refusal to comply with the defendant’s COVID-19

policies was clearly the basis for her termination, the

defendant adopted its policies before the plaintiff” engaged in

any protected activity); Johnson v. Maximus Services LLC, No.

22-cv-2935 (AMD), 2023 WL 5612826, at *4 (E.D.N.Y. Aug. 30,

2023) (“the defendant merely enforced its policy, which it

adopted before the plaintiff voiced any opposition to it”);

Apuzza, 2023 WL 9022790, at *6 (“Even assuming that [plaintiff]

adequately alleges that she engaged in protected activity,

[plaintiff’s] claim fails because she does not plead sufficient

facts to plausibly allege that the protected activity, rather

than [defendant’s vaccine mandate], caused her termination.”);

Grimes v. New York and Presbyterian Hospital, No. 23-cv-652

(MKV), 2024 WL 816208, at *10 (S.D.N.Y. Feb. 6, 2024) (“contrary

to [plaintiff’s] claims that her termination . . . constituted

retaliation based on religious or disability animus, [plaintiff]

was expressly warned—along with all other [] employees—that

noncompliance with the DOH Mandate would result in [the] precise

consequences” that she suffered from).

Ultimately, Plaintiff’s own allegations in the Second

Amended Complaint establish that even if she had never filed the

December 20, 2021 ADA Notice, Plaintiff’s continued

noncompliance would have resulted in exactly the consequences

that she alleges as adverse employment actions. Indeed, even if

Plaintiff had not informally complained of Defendant’s COVID-19

precautions in her discussions with her supervisors or submitted

either the September 16, 2021 or October 27, 2021 Exemption

requests, pursuant to the COVID-19 policies of the City, the

FDNY, and H+H, Plaintiff would not have been permitted to

participate in the H+H Paramedic Training Program, she would

have been required to submit to weekly COVID-19 testing and,

after the City enacted its vaccine mandate, she would have been

placed on LWOP status and she would have been terminated because

she failed to adhere to the applicable COVID-19 policies at the

relevant times, all of which were mandated by the City. See

Grimes, 2024 WL 816208, at *9 (“Retaliation claims under . . .

ADA require a plaintiff to plausibly allege that her protected

activity was a ’but-for’ cause of the alleged adverse action by

the employer” and Plaintiff’s claim fails because “she still

would have been terminated based on her failure to get

vaccinated.”) (citing Univ. of Tex. Sw. Med. Ctr. V. Nassar, 570

U.S. 338 (2013)).

With respect to each of the three categories of adverse

employment actions, Plaintiff failed to allege a causal

connection between her December 20, 2021 protected activity and

the alleged adverse employment actions. To the contrary,

Plaintiff has alleged facts strongly suggesting that Plaintiff’s

experience being subjected to the applicable COVID-19

precautions, her inability to participate in the H+H Paramedic

Training Program, and her LWOP status and subsequent termination

were all caused by her choice to remain noncompliant with a

lawful employment policy, notwithstanding several warnings of

the foreseen consequences. Accordingly, Plaintiff has not

alleged sufficient facts to state a plausible claim of

retaliation under the ADA.

CONCLUSION

For the forgoing reasons, Defendant’s motion to dismiss

Plaintiff’s Second Amended Complaint with prejudice is GRANTED.

The Second Amended Complaint is DISMISSED in its entirety with

prejudice.

Federal Rule of Civil Procedure 15(a) dictates that leave

to amend a complaint shall be freely given “when justice so

requires.” Although the Second Circuit has advised that “the

usual practice upon granting a motion to dismiss [is] to allow

leave to replead,” Cortec Indus., Inc. v. Sum Holding L.P., 949

F.2d 42, 48 (2d Cir. 1991), Plaintiff has already been granted

leave to amend her Complaint twice. See Ruotolo v. City of New

York, 514 F.3d 184, 191 (2d Cir. 2008) (“leave to amend, though

liberally granted, may properly be denied for .. . failure to

cure deficiencies by amendments previously allowed”) (internal

Citations omitted). Here, Plaintiff filed her original

Complaint, and First and Second Amended Complaints. Moreover,

Plaintiff “can plead no facts that would overcome the legal

deficiencies discussed above.” Johnson v. Maximus Services LLC,

No. 22-cv-2935 (AMD), 2023 WL 5612826, at *6 (E.D.N.Y. Aug. 30,

2023). As such, the Court will not grant further leave to

amend.

The Clerk of Court is respectfully requested to enter

judgment in favor of Defendant and to close this case.

Defendant is requested to serve Plaintiff with a copy of this

Memorandum and Order and the Judgment and to note service by

April 2, 2024.

SO ORDERED.

Dated: March 28, 2024

Brooklyn, New York

Yn en

eee te

givo"n. MATSUMOTO

United States District Judge

Eastern District of New York

4l