Opinion

DR. DOE, M.D. v. Hochul

Court: District Court, N.D. New York
Filed: Feb 14, 2022
Cited by: 0 cases
Authority: More cited than 26.9%

“[T]he true state actor and the jointly acting private party must agree to deprive the plaintiff of rights guaranteed by [ ] law.”

How later courts described this case

“[T]he true state actor and the jointly acting private party must agree to deprive the plaintiff of rights guaranteed by [ ] law.”
“The mere fact that [the State] regulates the . . . private hospital does not per se make the acts of the hospital . . . the acts of the state.”
observing that “[t]he touchstone of joint action is often a plan, prearrangement, conspiracy, custom, or policy shared” by the private actor and the [state] actor”
“Mere cooperation with a state official or investigatory agency is insufficient to establish state action.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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DR. DOE, M.D., DR. DOE 2,

M.D., NURSE DOE, R.N., and

SCIENTIST DOE A.S.C.P.,

Plaintiffs,

-v- 3:21-CV-1078

HON. KATHY HOCHUL, Governor

of the State of New York, in her

personal and official capacity,

HOWARD A. ZUCKER,

Commissioner of the New York

State Department of Health, in his

personal and official capacity,

OUR LADY OF LOURDES

MEMORIAL HOSPITAL, INC.,

formerly known as Our Lady of

Lourdes, Inc.,

Defendants.

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APPEARANCES: OF COUNSEL:

GIBSON LAW FIRM, PLLC SUJATA SIDHU GIBSON, ESQ.

Attorneys for Plaintiffs

408 W. Martin Luther King, Jr., Street

Ithaca, NY 14850

HON. LETITIA JAMES KASEY K. HILDONEN, ESQ.

New York State Attorney General RYAN W. HICKEY, ESQ.

Attorneys for Defendants Hon. Kathy Ass’t Attorneys General

Hochul and Howard A. Zucker

The Capitol

Albany, NY 12224

JACKSON LEWIS P.C. KRISTI RICH WINTERS, ESQ.

Attorneys for Defendant VINCENT E. POLSINELLI, ESQ.

677 Broadway, 9th Floor

Albany, NY 12207

DAVID N. HURD

United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

On August 26, 2021, the New York State Department of Health adopted

an emergency regulation that required most healthcare workers to be

vaccinated against COVID-19. N.Y. COMP. CODES R. & REGS. tit. 10, § 2.61(c)

(2021). New York was not alone in its decision to implement novel vaccine

requirements for certain sectors of the workforce. States all over the country

adopted or enacted similar emergency regulations. So too did the federal

government. Challenges to these requirements generated a wave of litigation

that quickly washed over the state and federal courts.

This lawsuit is a part of the wave. As relevant to this litigation, § 2.61

eliminated a religious exemption that had been included in the first iteration

of the State’s vaccination requirement. Plaintiffs are four medical

professionals with a sincere religious objection to the existing COVID-19

vaccines. They were employed in various healthcare roles by Our Lady of

Lourdes Memorial Hospital (“Lourdes” or the “Hospital”), which is located in

Binghamton, New York.

On October 1, 2021, plaintiffs filed this 42 U.S.C. § 1983 action against the

Hospital and two State officials involved in the enforcement of § 2.61: New

York State Governor Kathy Hochul (“Hochul”) and New York State Health

Commissioner Howard A. Zucker (“Zucker”).1 Plaintiffs’ verified complaint

alleged, inter alia, that Lourdes suspended or terminated them for refusing to

be vaccinated. Plaintiffs sought a temporary restraining order and a

preliminary injunction that would direct the Hospital to reinstate them

pending a resolution of the merits of their claims.

On October 14, 2021, plaintiffs’ motion for a temporary restraining order

against defendants Hochul and Zucker (the “State defendants”) was denied as

moot. As the October 14 Order explained, these State defendants were

already enjoined from enforcing § 2.61 as the result of a preliminary

injunction entered in Dr. A. v. Hochul, a related case in which a separate

group of healthcare professionals had raised a similar religious objection to

the COVID-19 emergency regulation. Dkt. No. 12.

The October 14 Order declined to extend this relief to include Lourdes,

plaintiffs’ employer. However, the Court ordered the parties to finish briefing

plaintiffs’ request for a preliminary injunction. Shortly thereafter, the State

1 Zucker has resigned from his position and been replaced by Mary T. Bassett, M.D.,

M.P.H. Although the Rules provide for the automatic substitution of a new officeholder in an

official-capacity action, FED. R. CIV. P. 25(d), plaintiffs have also attempted to assert

individual-capacity claims against this defendant. Am. Compl. ¶ 10.

defendants moved to stay this action pending the outcome of an interlocutory

appeal in Dr. A, the companion challenge to § 2.61 mentioned supra. The

Court stayed the State defendants’ briefing deadline on October 20, 2021,

Dkt. No. 17, and granted plaintiffs’ request to withdraw their motion for a

preliminary injunction on October 26, 2021, Dkt. No. 20.

On October 29, 2021, a panel of the U.S. Court of Appeals for the Second

Circuit vacated the preliminary injunction that had restrained the State

defendants’ enforcement of § 2.61. We the Patriots USA, Inc. v. Hochul, 2021

WL 5103443 (2d Cir. Oct. 29, 2021). Thereafter, the panel issued an opinion

explaining its rationale for granting vacatur in Dr. A. We The Patriots USA,

Inc. v. Hochul, 17 F.4th 266 (2d Cir.) (per curiam), opinion clarified, 17 F.4th

368 (2d Cir. 2021).2

On November 23, 2021, plaintiffs in this action filed a first amended class

action complaint that seeks relief on behalf of themselves and a putative

class of similarly situated healthcare workers. Dkt. No. 27. According to the

five-count complaint, § 2.61 violates their rights under the U.S. Constitution,

Title VII of the Civil Rights Act of 1964, and related state law.

On December 14, 2021, Lourdes moved under Federal Rule of Civil

Procedure (“Rule”) 12(b)(6) to dismiss plaintiffs’ first amended class action

2 The Dr. A plaintiffs petitioned the Supreme Court for certiorari, which was denied. 142 S. Ct.

552 (mem.) (Dec. 13, 2021).

complaint. Dkt. No. 29. Plaintiffs oppose. Dkt. No. 32. The Hospital has

replied. Dkt. No. 33. The motion is fully briefed and will be considered on

the basis of the submissions without oral argument.

II. BACKGROUND3

On June 25, 2021, then-Governor Andrew Cuomo rescinded the COVID-19

public health emergency declaration that had been in effect across New York

State for the previous eighteen months. N.Y. Exec. Order 210 (June 24,

2021). Even so, on August 18, 2021, Zucker issued an “Order for Summary

Action” that required general hospitals and nursing homes to “continuously

require all covered personnel to be fully vaccinated against COVID-19.” See

Dr. A, 2021 WL 4734404, at *1.

Zucker’s August 18 Order included a medical exemption and an explicit

religious exemption, the latter of which stated that covered entities “shall

grant a religious exemption for COVID-19 vaccination for covered personnel

if they hold a genuine and sincere religious belief contrary to the practice of

immunization, subject to a reasonable accommodation by the employer.” Dr.

A, 2021 WL 4734404, at *2.

3 The following facts are taken from plaintiffs’ first amended class action complaint. Plaintiffs

characterize this as a “verified” pleading, which would ordinarily be tantamount to an affidavit

under 28 U.S.C. § 1746. But there are no declarations attached from any of the four named

plaintiffs. To warrant treatment as equivalent to an affidavit under § 1746, a declaration or

verification must be made on personal knowledge and sworn to under penalty of perjury.

On August 23, 2021, Cuomo resigned from office and Hochul assumed the

governorship. See Am. Compl. ¶ 38; Dr. A, 2021 WL 4734404, at *2. That

same day, New York State’s Public Health & Health Planning Council, acting

on a summary basis pursuant to its statutory authority under the Public

Health Law, published a proposed emergency regulation on COVID-19

vaccination. Dr. A, 2021 WL 4734404, at *2.

The Health Council’s proposal expanded the vaccination requirement to

reach personnel in other healthcare settings. Dr. A, 2021 WL 4734404, at *2.

The proposal also eliminated the explicit religious exemption language found

in Zucker’s August 18 Order. Id. The August 18 Order was superseded when

the Health Council adopted § 2.61 on August 26, 2021. Id. According to the

first amended class action complaint, Hochul has since made “statements to

the press [that] clarify that the removal [of the religious exemption] was

intentional and motivated by animus.” Am. Compl. ¶ 39.

The four named plaintiffs “are medical professionals working for

Ascension-Lourdes hospital in Binghamton, New York[,] whose sincere

religious beliefs compel them to refuse vaccination with the available

COVID-19 vaccines.” Am. Compl. ¶ 12. According to the first amended

complaint, the plaintiffs “were suspended and terminated in reliance on the

stayed Vaccine Mandate on September 27, 2021.” Id. ¶ 15.

The first amended complaint alleges that Lourdes “has expressed an

intolerance for different religious viewpoints on vaccination, especially among

Catholics.” Am. Compl. ¶ 109. Although the Hospital purports to offer a

religious exemption under its corporate policy, the complaint alleges that

“supervisors informed employees . . . that they would not consider granting

religious exemptions to any Catholics or people whose religious beliefs

conflicted with any recognized orthodoxy or dogma of so-called ‘sanctioned’

religious leaders.” Id. ¶ 114.

Each named plaintiff alleges that they sought from Lourdes a religious

exemption to the vaccination requirement. Am. Compl. ¶¶ 142; p. 25 ¶¶ 5,

13; p.26 ¶ 23.4 Three of the plaintiffs received from the Hospital a form letter

indicating that their refusal to comply with the vaccination requirement

would be deemed a voluntary resignation. Id. ¶¶ 144; p. 26 ¶14; p. 27 ¶ 24.

The exception was plaintiff “Dr. Doe 2,” a control group participant in an

FDA trial. Am. Compl. p. 25 ¶ 7. Although it refused to grant her a religious

exemption, the Hospital has granted her a medical exemption. Id. ¶ 8. She is

still employed at the Hospital. Id. The others have been suspended or

terminated. Am. Compl. ¶¶ 144–45; p. 26 ¶ 14; p. 27 ¶ 26.

4 The amended complaint is sequentially numbered until paragraph 147, where the numerical

values reset to “1.” Am. Compl. at p.24. Beyond the first 147 paragraphs, the Court will cite to the

CM/ECF page number and the individual paragraph to assist the reader.

III. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual

allegations must be enough to elevate the plaintiff’s right to relief above the

level of speculation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So

while legal conclusions can provide a framework for the complaint, they must

be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009). In short, a complaint must contain “enough facts to state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

To assess this plausibility requirement, the court must accept as true all of

the factual allegations contained in the complaint and draw all reasonable

inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94

(2007). In doing so, the court generally confines itself to the facts alleged in

the pleading, any documents attached to the complaint or incorporated into it

by reference, and matters of which judicial notice may be taken. Goel v.

Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).

IV. DISCUSSION

Plaintiffs allege violations of: (1) the First Amendment’s Free Exercise and

Establishment Clauses; (2) the Fourteenth Amendment’s Equal Protection

Clause; (3) the Supremacy Clause; and (4) Title VII. Plaintiffs’ also seek a

(5) judgment declaring § 2.61 unconstitutional under the federal and state

constitutions.

Lourdes has moved to dismiss all of the claims asserted against the

Hospital. Def.’s Mem., Dkt. No. 29-1. As for the alleged constitutional

violations, the Hospital contends that these claims “have absolutely nothing

to do with Lourdes, as the Hospital is not a state actor.” Id. at 5. And as for

the Title VII claim, the Hospital argues that plaintiffs “have admittedly

failed to exhaust their administrative remedies.” Id.

In opposition, plaintiffs claim Title VII’s exhaustion requirement should

be waived because the administrative agency was “too busy to provide

adequate relief.” Pls.’ Opp’n, Dkt. No. 32 at 8. Plaintiffs further claim that

their constitutional claims remain viable against Lourdes because its “actions

have shown it to be not merely a bystander, but a fully willful participant

acting jointly alongside the state to thwart the civil rights of its employees,

even when it had been court-ordered not to do so.” Id. at 13.

A. Section 1983 & State Action

“Because the United States Constitution regulates only the Government,

not private parties, a litigant claiming that his constitutional rights have

been violated must first establish that the challenged conduct constitutes

‘state action.’” Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (quoting

Flagg v. Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005)).

“[S]tate action requires both an alleged constitutional deprivation ‘caused

by the exercise of some right or privilege created by the State or by a rule of

conduct imposed by the State or by a person for whom the State is

responsible,’ and that ‘the party charged with the deprivation must be a

person who may fairly be said to be a state actor.’” Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 50 (1999) (quoting Lugar v. Edmondson Oil Co., 457

U.S. 922, 937 (1982)).

As the Supreme Court has recognized, “there is no single test to identify

state actions and state actors.” Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 531 U.S. 288, 294 (2001). Although a host of factors can bear

on this question, three main tests have emerged:

For purposes of section 1983, the actions of a

nominally private entity are attributable to the state

when: (1) the entity acts pursuant to the “coercive

power” of the state or is “controlled” by the state (“the

compulsion test”); (2) when the state provides

“significant encouragement” to the entity, the entity is

a “willful participant in joint activity with the state,”

or the entity’s functions are “entwined” with state

policies (“the joint action test” or “close nexus test”); or

(3) when the entity “has been delegated a public

function by the state (“the public function test”).

Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir.

2008) (cleaned up). New York courts recognize the same “state action”

requirement and apply a similar set of three tests. Liberty Sackets Harbor,

LLC v. Vill. of Sackets Harbor, 2018 WL 4609129, at *9 (N.D.N.Y. Sept. 25,

2018) (Suddaby, J.), aff’d, 776 F. App’x 1 (2d Cir. 2019) (summary order).

Upon review, plaintiffs’ constitutional claims against Lourdes must be

dismissed. Plaintiffs argue it is “uncontested” that the Hospital “loudly,

publicly justified its actions by reliance on the Vaccine Mandate.” Pls.’ Opp’n

at 12. And in their first amended class action complaint, plaintiffs allege that

the Hospital is part of Ascension, a large Catholic health system that “has

expressed an intolerance for different religious viewpoints on

vaccination.” Am. Compl. ¶¶ 109–10.

This kind of allegation is nowhere near enough to plausibly allege state

action. “The fundamental question under each test is whether the private

entity’s challenged actions are ‘fairly attributable’ to the state.” Fabrikant,

691 F.3d at 207. It is undisputed that Lourdes and its parent organization

are private entities. Private conduct, “no matter how discriminatory or

wrongful,” does not satisfy the “state action” requirement. Gill v. Silver Invs.,

Inc., 413 F. Supp. 3d 123, 127 (E.D.N.Y. 2016).

As a health care provider, Lourdes is almost certainly licensed in, and is

surely extensively regulated by, New York State. But that is not sufficient

trigger “state action,” either. See, e.g., Jackson v. Metro. Edison Co., 419 U.S.

345, 351 (1974) (“The mere fact that a business is subject to state regulation

does not by itself convert its action into that of the State for purposes of the

Fourteenth Amendment.”); Schlein v. Milford Hosp., 561 F.2d 427, 428 (2d

Cir. 1977) (“The mere fact that [the State] regulates the . . . private hospital

does not per se make the acts of the hospital . . . the acts of the state.”).

Plaintiffs’ allegations about Lourdes’s and/or Ascension’s ideological

alignment with Hochul’s public statements cannot save these constitutional

claims. “A private actor can only be a willful participant in joint activity with

the State or its agents if the two share some common goal to violate the

plaintiff’s rights.” Betts v. Shearman, 751 F.3d 78, 85 (2d Cir. 2014) (cleaned

up). In order to satisfy this requirement, the plaintiff must “allege facts

demonstrating that the private entity acted in concert with the state actor to

commit an unconstitutional act.” Id. (emphasis added).

Plaintiffs have not done so. Even drawing all inferences in their favor,

what plaintiffs have alleged is a course of independent conduct. The first

amended class action complaint describes a situation in which one defendant

(a public official) has expressed in religious terms her support for a State

regulatory requirement that allegedly aligns with another defendant’s (the

private employer) own viewpoint on the subject.

But a private entity’s decision to comply with a State regulation does not

transform into “state action” merely because public and private viewpoints

happen to align. Cf. Estiverne v. Esernio-Jenssen, 910 F. Supp. 2d 434, 442

(E.D.N.Y. 2012) (“Mere cooperation with a state official or investigatory

agency is insufficient to establish state action.”). Instead, what a plaintiff

must allege is a set of facts that plausibly describe something other than

independent conduct by two actors. See, e.g., Missere v. Gross, 826 F. Supp.

2d 542, 567 (S.D.N.Y. 2011) (observing that “[t]he touchstone of joint action is

often a plan, prearrangement, conspiracy, custom, or policy shared” by the

private actor and the [state] actor”); Bang v. Utopia Rest., 923 F. Supp. 46, 49

(S.D.N.Y. 1996) (“[T]he true state actor and the jointly acting private party

must agree to deprive the plaintiff of rights guaranteed by [ ] law.”).

Finally, to the extent that plaintiffs have alleged that Lourdes acted in a

discriminatory or otherwise wrongful manner by suspending them while the

enforcement of § 2.61 was stayed in the Dr. A action, it bears emphasizing

that only the State defendants were enjoined in Dr. A. Thus, while the

Hospital’s alleged conduct might have somehow violated some other provision

of federal or state law (e.g., Title VII), that fact does not transform it into

“state action” for purposes of a constitutional claim. Accordingly, plaintiffs’

constitutional claims must be dismissed against the Hospital.

B. Title VII & Administrative Exhaustion5

“As a precondition to filing a Title VII claim in federal court, a plaintiff

must first pursue available administrative remedies and file a timely

complaint with the EEOC.” Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir.

5 “The failure to exhaust administrative remedies is an affirmative defense, for which defendant

bears the burden of proof.” Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d 588, 594 n.5

(E.D.N.Y. 2013). Even so, it can properly be raised on a motion to dismiss “where the complaint

itself establishes the circumstances required as a predicate to a finding that the affirmative defense

applies.” In re Sept. 11 Prop. Damage & Bus. Loss Litig., 481 F. Supp. 2d 253, 258 (S.D.N.Y. 2007).

2003). After a charge has been filed, the EEOC has 180 days to dismiss the

charge or file a civil action. 42 U.S.C. § 2000e-5(f)(1). “Regardless of whether

the EEOC acts on a charge, the EEOC must issue a right-to-sue notice 180

days after the filing of that charge.” Hernandez v. Premium Merchant

Funding One, LLC, 2020 WL 3962108, at *3 (S.D.N.Y. July 13, 2020). “A

complainant then has 90 days to bring suit against the employer.” Id.

Upon review, plaintiffs’ Title VII claims against Lourdes must be

dismissed. The first amended class action complaint alleges that the named

plaintiffs have filed EEOC charges and requested right-to-sue letters, but

were informed that “it could take up to 180 days for the letter to issue.” Am.

Compl. at p.37 ¶¶ 206–07. According to plaintiffs, the fact that the 180-day

period set forth in the statute has not yet elapsed is irrelevant because a

right-to-sue letter is just a “formality.” Id. ¶ 213.

Plaintiffs are incorrect. As the Second Circuit has explained, “[t]he

purpose of this exhaustion requirement is to give the administrative agency

the opportunity to investigate, mediate, and take remedial action.” Brown v.

Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998) (cleaned up). Because the

purpose of this remedial scheme “would be defeated if a complainant could

litigate a claim not previously presented to and investigated by the EEOC,”

Miller v. Int’l Tel. & Tel. Corp., 755 F.2d 20, 26 (2d Cir. 1985), a “right-to-sue

letter is a necessary prerequisite to filing suit,” Syeed v. Bloomberg L.P., –F.

Supp. 3d–, 2021 WL 4952486, at *12 (S.D.N.Y. Oct. 25, 2021) (quoting

Newsome v. Berman, 24 F. App’x 33, 34 (2d Cir. 2001) (summary order)).

Plaintiffs concede that they filed this action in federal court before

receiving any right-to-sue letters. Accordingly, their Title VII claims against

Lourdes must be dismissed. In an effort to avoid this result, plaintiffs claim

that the exhaustion requirement should be waived in the interests of justice

and judicial economy. Pls.’ Opp’n at 7–11. In plaintiffs’ view, “[t]he EEOC is

too busy to timely respond to these complaints.” Am. Compl. at p. 37 ¶ 208;