Kane v. de Blasio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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MICHAEL KANE, et al.,

Plaintiffs,

- against -

BILL DE BLASIO, et al., MEMORANDUM AND ORDER

21 Civ. 7863 (NRB)

Defendants. 21 Civ. 8773 (NRB)

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MATTHEW KIEL, et al.,

Plaintiffs,

- against -

THE CITY OF NEW YORK, et al.,

Defendants.

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NAOMI REICE BUCHWALD

UNITED STATES DISTRICT JUDGE

Since the novel coronavirus emerged two and a half years ago,

over a million people in the United States have died from COVID-

19, including over 40,000 residents of New York City (the “City”).1

Due to the rapid spread of COVID-19, City schools were abruptly

compelled in the spring of 2020 to operate remotely.2 In order to

combat the further spread of the coronavirus and to allow schools

1 Covid Data Tracker Weekly Review, Centers for Disease Control (Aug. 19,

2022) https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html;

COVID-19: Data, City of New York (Aug. 24, 2022), https://www1.nyc.gov/site/doh/

covid/covid-19-data-totals.page.

2 New York City to Close All School Buildings and Transition to Remote

Learning, Office of the Mayor (Mar. 15, 2020), https://www1.nyc.gov/office-of-

the-mayor/news/151-20/new-york-city-close-all-school-buildings-transition-

remote-learning.

to reopen as safely as possible, in August 2021, following the

Food and Drug Administration’s (“FDA”) full approval of a COVID-

19 vaccine, the New York City Commissioner of Health and Mental

Hygiene issued an order requiring Department of Education (“DOE”)

staff, along with other City employees and contractors working in

person in school settings, to provide proof of vaccination against

COVID-19, which was restated with minor amendments in September

2021 (the “Vaccine Mandate” or “Mandate”). Plaintiffs are 21

teachers, administrators, and other DOE staff who challenge this

Mandate on behalf of themselves and a purported class because they

believe its requirement that they be vaccinated against COVID-19

violates, inter alia, their religious freedoms guaranteed by the

First Amendment.3 Presently before this Court are defendants’

motion to dismiss the complaint for failure to state a claim, ECF

No. 111, and plaintiffs’ fourth motion for a preliminary

injunction, which seeks an injunction “barring enforcement of the

Mandate against [p]laintiffs and any other DOE employee who has

applied for religious accommodation and offering each

reinstatement of pay and benefits pending resolution on the

merits,” ECF No. 121 at 25.4

3 The above-captioned cases were both originally assigned to Judge Caproni

and consolidated by her. After consolidation, plaintiffs filed an amended

consolidated complaint, ECF No. 102 (“ACC”), alleging injuries on behalf of

themselves and a purported class.

4 Plaintiffs in both cases filed motions for a preliminary injunction and

a temporary restraining order at the outset of their case. Judge Caproni denied

the motions, and the plaintiffs appealed. The Second Circuit considered the

appeals together and granted a preliminary injunction, as discussed infra.

The present motions are the first before this Court. After

Judge Caproni repeatedly denied plaintiffs’ motions for

preliminary injunction, plaintiffs filed a motion asking Judge

Caproni to recuse herself, arguing that Judge Caproni had held

Pfizer stock, which could theoretically be impacted by the outcome

of this litigation. While Judge Caproni doubted the resolution of

the merits of the case would have any meaningful impact on Pfizer

stock, she decided to recuse herself “out of an abundance of

caution and to avoid even the possible appearance of any bias or

prejudice[.]” ECF No. 175 at 2-3. For the following reasons,

this Court joins the long list of other courts who have upheld

COVID-19 vaccine mandates,5 and holds that the defendants’ motion

After consolidation, the plaintiffs filed an additional motion for a preliminary

injunction, which was denied. Thus, this present motion is the fourth motion

for a preliminary injunction filed in this case.

5 See, e.g., We the Patriots, USA, Inc. v. Hochul, 17 F.4d 266 (2d Cir.

2021) (denying preliminary injunction of vaccine mandate for healthcare

workers), op. clarified, 17 F.4d 368 (2d Cir. 2021), cert. denied sub nom. Dr.

A. v. Hochul, 142 S. Ct. 2569 (2022); Maniscalco v. New York City Dep’t of

Educ., 563 F. Supp. 3d 33 (E.D.N.Y. 2021) (denying preliminary injunction of

vaccine requirement for teachers and other DOE employees), aff’d, No. 21-2343,

2021 WL 4814767 (2d Cir. Oct. 15, 2021), cert. denied, 142 S. Ct. 1668, 212 L.

Ed. 2d 578 (2022); Broecker v. New York Dept. of Educ., No. 21 Civ. 6387 (KAM)

(LRM), 2022 WL 426113 (E.D.N.Y. Feb. 11, 2022) (denying preliminary injunction

of vaccine mandate for other DOE employees); Marciano v. de Blasio, No. 21 Civ.

10752 (JSR), 2022 WL 678779, (S.D.N.Y. Mar. 8, 2022) (dismissing challenge to

vaccine requirement for City employees); O’Reilly v. Bd. of Educ., Index No.

161040/2021, 2022 NY Slip Op 30173[U] (N.Y. Sup. Ct., N.Y. Cnty. Jan. 20, 2022)

(denying preliminary injunction of vaccine mandate for other DOE employees);

New York City Mun. Lab. Comm. v. City of New York, 73 Misc. 3d 621, 628, 156

N.Y.S.3d 681, 687 (N.Y. Sup. Ct., N.Y. Cnty. 2021) (denying preliminary

injunction of vaccine mandate and dismissing case); Ferrelli v. Unified Ct.

Sys., No. 22 Civ. 68 (LEK) (CFH), 2022 WL 673863, (N.D.N.Y. Mar. 7, 2022)

(denying injunction of vaccine mandate in the New York State Court system);

Brock v. City of New York, No. 21 Civ 11094 (AT) (SDA), 2022 WL 479256, at *1

(S.D.N.Y. Jan. 28, 2022) (denying preliminary injunction and temporary

restraining order blocking vaccine mandate for City employees); Garland v. New

York City Fire Dep’t, 574 F. Supp. 3d 120 (E.D.N.Y. 2021) (E.D.N.Y. 2021)

(denying preliminary injunction of vaccine mandate for City employees); Andre-

to dismiss is GRANTED and plaintiffs’ motion for a preliminary

injunction is DENIED.6

I. Background7

A. The Vaccine Mandate and the Arbitration Award

On August 23, 2021, the FDA approved the Pfizer-BioNTech

COVID-19 vaccine for individuals 16 years and older.8 On August

24, 2021, the Commissioner of the Department of Health and Mental

Hygiene (the “Commissioner”) promulgated an order (the “Original

Vaccination Mandate” or “Original Mandate”) requiring all DOE

staff, along with all City employees and staff of contractors of

the DOE and City who work in person at a DOE school setting or DOE

building, to provide proof that they were fully vaccinated or on

track to become fully vaccinated by September 27, 2021 or prior to

beginning employment. See ACC ¶ 63; Declaration of Lora Minicucci,

ECF No. 113-2 (“Ex B”) at 2-3. The Original Mandate defined “fully

Rodney v. Hochul, No. 21 Civ. 1053 (BKS) (CFH), 2022 WL 3027094, (N.D.N.Y. Aug.

1, 2022) (dismissing challenge to vaccine mandate for hospital employees).

6 Plaintiffs requested oral argument on the motion to dismiss. ECF No.

119. The Court has concluded that oral argument is unnecessary in light of the

extensive briefing submitted by the parties, the numerous prior decisions in

this case, and because the issues before the Court are purely legal.

7 The following facts are primarily drawn from the operative complaint, ECF

No. 102. Where noted, certain facts of which the Court takes judicial notice

or which are incorporated by reference in the ACC are drawn from exhibits

attached to the Declaration of Lora Minicucci, ECF No. 113, and the Declaration

of Sujata S. Gibson, ECF No. 122. For the purposes of the Court’s ruling on

the instant motion, the Court draws all reasonable inferences in plaintiffs’

favor. See Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012).

8 FDA Approves First COVID-19 Vaccine, FDA.gov, (Aug. 23, 2021),

https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-

19-vaccine. The Court takes judicial notice of the FDA’s press release

announcing the full approval of the Pfizer-BioNTech vaccine. See Apotex Inc.

v. Acorda Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016) (finding that Court

may properly take judicial notice of publicly available FDA guidance).

vaccinated” to mean “at least two weeks have passed after an

individual received a single dose of a one-dose series, or the

second dose of a two-dose series, of a COVID-19 vaccine approved

or authorized for use by the Food and Drug Administration or World

Health Organization.” Ex. B at 2.

The Original Mandate explained that the U.S. Centers for

Disease Control (“CDC”) “has recommended that school teachers and

staff be ‘vaccinated as soon as possible’ because vaccination is

‘the most critical strategy to help schools safely resume] full

operations . . . [and] is the leading public health prevention

strategy to end the COVID-19 pandemic;’” Id. at 2 (alterations and

quotation marks in original). It further stated that “a system of

vaccination for individuals working in school settings or other

DOE buildings will potentially save lives, protect public health,

and promote public safety,” and noted that the DOE “serves

approximately 1 million students across the City, including

students in the communities that have been disproportionately

affected by the COVID-19 pandemic and students who are too young

to be eligible to be vaccinated.” Id. The Original Mandate

contained no medical or religious exemptions. Id.

On September 1, 2021, the United Federation of Teachers, Local

2, AFT, AFL-CIO (“UFT”) filed a Declaration of Impasse, and shortly

thereafter entered into arbitration with the City and the Board of

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

(the “BOE”). ACC ¶¶ 66; 70(a). On September 10, 2021, following

arbitration, the City, the BOE, and the UFT reached an agreement

(the “UFT Award”) that provided for, “as an alternative to any

statutory reasonable accommodation process,” a procedure and

criteria for religious exemptions. Id. ¶¶ 67; 70(a). With respect

to religious exemptions, the UFT Award stated that:

Religious exemptions for an employee to not adhere

to the mandatory vaccination policy must be

documented in writing by a religious official (e.g.,

clergy). Requests shall be denied where the leader

of the religious organization has spoken publicly in

favor of the vaccine, where the documentation is

readily available (e.g., from an on line source), or

where the objection is personal, political, or

philosophical in nature. Exemption requests shall

be considered for recognized and established

religious organizations (e.g., Christian

Scientists).

Id. ¶ 70(c). Employees who wished to submit applications for this

exemption were required to submit their requests via an online

system, SOLAS, by September 20, 2021 at 5 p.m. Id. ¶ 70(b).

Staff in the Division of Human Capital in the Office of Medical,

Leaves and Benefits; the Office of Equal Opportunity; and Office

of Employee Relations were to issue decisions in writing by

September 23, 2021, and, if the request was denied, set forth a

reason for a denial. Id. ¶ 70(d). Thereafter, those employees

whose requests were denied had one school day from the issuance of

the decision to appeal, with an additional 48 hours after the

filing of the appeal to submit any additional documentation. Id.

¶ 70(e). The UFT Award noted that if the reason for the denial

was a lack of documentation, an arbitrator could permit additional

time to submit the documentation. Id. Appeals were to be

conducted by a panel of arbitrators identified by Scheinman

Arbitration and Mediation Services. Id. ¶ 70(f). The UFT Award

provided that if an employee was granted a religious exemption,

they were permitted to remain on the payroll, but were “in no event

required/permitted to enter a school building while unvaccinated,

as long as the vaccine mandate is in effect.” Id. ¶ 70(i).

The UFT Award also provided that if an unvaccinated employee

chose not to request an exemption or was denied an exemption, the

employee could be placed on leave without pay effective September

28, 2021 or upon denial of their appeal, whichever was later,

through November 30, 2021. Id. ¶ 70(k). The UFT Award also

created two options for employees to leave the DOE rather than be

vaccinated. First, during the period of September 28, 2021 through

October 29, 2021, any employee who was on leave without pay due to

their vaccination status and wished to separate from the DOE was

permitted to do so on the understanding that they would be deemed

to have resigned involuntarily and would waive the right to

challenge their resignation. Id. ¶ 70(m). In exchange, they would

receive a reimbursement for their unused CAR days,9 and would be

9 Plaintiffs do not define the term “CAR days”, but it appears to refer to

“Cumulative Absence Reserve” days, which are the equivalent of sick days. See

eligible for health insurance through September 5, 2022, unless

they were eligible for health insurance from a different source.

Id.

Second, the UFT Award provided that during the period from

November 1, 2021 through November 30, 2021, any employee could

alternately opt to extend their leave without pay until September

5, 2022, provided they waived the right to challenge their

voluntary resignation. Id. ¶ 70(n). Any employee who decided to

get vaccinated had the right to return to their same school within

two weeks. Id. The UFT Award also stated that, beginning December

1, 2021, the DOE would seek to unilaterally separate employees who

had not opted into one of these two options. Id. ¶ 70(o).

On September 15, 2021, an arbitrator announced an arbitral

award between the DOE and the Council of Supervisors and

Administrators (“CSA”), which mirrored the UFT Award in all

relevant respects (the “CSA Award”). Id. ¶ 71. On September 12

and September 15, 2021, the Commissioner issued slightly revised

versions of the vaccine mandate. ECF No. 113-3 (“Ex. C” or

“Vaccine Mandate”) at 2. The September 15, 2021 order is currently

in effect. Id. It provides the same justifications as the

Original Mandate, id. at 1-2, and required that:

No later than September 27, 2021, or prior to beginning

employment, the following individuals must provide

proof of vaccination as described below:

Cumulative Absence Reserve (CAR), United Federation of Teachers, https://

www.uft.org/your-rights/know-your-rights/cumulative-absence-reserve-car.

a. DOE staff must provide proof of vaccination to the

DOE.

b. City employees who work in-person in a DOE school

setting, DOE building, or charter school setting must

provide proof of vaccination to their employer.

c. Staff of contractors of DOE or the City, as defined

below, must provide proof of vaccination to their

employer, or if self-employed, to the DOE.

d. Staff of any charter school serving students up to

grade 12, and staff of contractors hired by charter

schools co-located in a DOE school setting to work in

person in a DOE school setting or DOE building, must

provide proof of vaccination to their employer, or if

self-employed, to the contracting charter school.

Id. at 2. The order further defined “proof of vaccination” as

proof that an individual:

a. Has been fully vaccinated;

b. Has received a single dose vaccine, or the second dose

of a two-dose vaccine, even if two weeks have not

passed since they received the dose; or

c. Has received the first dose of a two-dose vaccine, in

which case they must additionally provide proof that

they have received the second dose of that vaccine

within 45 days after receipt of the first dose.

Id. It also defined “fully vaccinated” to mean “at least two weeks

have passed after an individual received a single dose of a COVID-

19 vaccine that only requires one dose, or the second dose of a

two-dose series of a COVID-19 vaccine approved or authorized for

use by the Food and Drug Administration or World Health

Organization.” Id.

C. Plaintiffs Refuse to Be Vaccinated and Commence This Suit

Plaintiffs are DOE employees who refuse to be vaccinated due

to their religious beliefs. The majority of plaintiffs in both

cases timely applied for religious exemptions before the September

20, 2021 deadline, pursuant to the process set out in the UFT

Award.10 See, e.g., ACC ¶¶ 226, 263, 292, 314, 362, 382, 408, 452,

553, 582, 613. Their applications were subsequently denied.11 See,

e.g., id. ¶¶ 234, 264, 292, 315, 328, 363, 382, 408, 453, 483,

554, 583, 614. Plaintiffs Kane, Castro, Chu, Clark, Di Capua,

Gladding, Nwaifejokwu, Romero, Ruiz-Toro, and Smith (collectively,

the “Kane plaintiffs”) filed a lawsuit on September 21, 2021 - the

day after the deadline for applying for a religious exemption under

the UFT Award - seeking a preliminary injunction. ECF No. 1. They

subsequently moved for a temporary restraining order on October 4,

2021. ECF No. 12. The Kane plaintiffs’ motion for a temporary

restraining order was denied on October 5, 2021, ECF No. 33, and

their motion for a preliminary injunction was denied on October

12, 2021, ECF No. 60. Plaintiffs Keil, De Luca, Delgado, Strk,

10 Plaintiffs Grimando, Giammarino, LoParrino, Weber, and Smith did not

timely apply for a religious exemption. Plaintiffs Giammarino, LoParrino, and

Smith did not do so because they believed they did not meet the criteria under

the UFT Award. Id. ¶¶ 422-23, 733, 758. Plaintiff Weber applied for a religious

exemption on October 1, 2021 (days after the September 20, 2021 deadline). Id.

¶ 642. His application was nonetheless reviewed and denied, and after his

denial, he decided not to appeal. Id. ¶ 652. Plaintiff Grimando initially and

repeatedly applied for medical exemptions, and after securing a medical

exemption for 45 days, then applied for a religious exemption, although she was

“intimidated by the requirements.” Id. ¶¶ 660, 663-666. At the time that the

ACC was filed, plaintiff Bryan’s application was pending before the Citywide

panel. Id. ¶¶ 727-28. Based on her declaration filed in support of the motion

for a preliminary injunction, ECF No. 123, it appears that her application has

been denied. Id. ¶ 13.

11 Plaintiff Ruiz-Toro appealed her denial and was subsequently approved for

a religious exemption to the Mandate through June 2022. Id. ¶ 488. As a

condition of this exemption, Ruiz-Toro is prohibited from entering any school

building or classroom. Id. ¶¶ 489-90. She challenges this condition, and

maintains a claim that the Mandate violates her constitutional and statutory

rights. Id.; see also id. at ¶¶ 920-21.

and Buzaglo (collectively, “the Keil plaintiffs”) filed a lawsuit

on October 27, 2021. Complaint, Keil et al. v. City of New York,

21 Civ. 8773 (S.D.N.Y. Oct. 27, 2021), ECF No. 10. The Keil

plaintiffs’ motion for a temporary restraining order and a

preliminary injunction were denied on October 28, 2021. Plaintiffs

appealed these denials on October 25 and 28, 2021, respectively.

ECF No. 67; Notice of Interlocutory Appeal, Keil et al. v. City of

New York, 21 Civ. 8773 (S.D.N.Y. Oct. 28, 2021), ECF No. 33.

The Second Circuit considered plaintiffs’ appeals in tandem

and issued a 48-page opinion addressing the substantive issues in

this case. It found that “[t]he Vaccine Mandate, in all its

iterations, is neutral and generally applicable.” Kane v. De

Blasio, 19 F.4th 152, 164 (2d Cir. 2021) (hereinafter “Kane”). It

also found that the Mandate’s exemptions do not treat secular

conduct more favorably than comparable religious conduct. Id. at

166. Accordingly, the Second Circuit found that the plaintiffs

were not likely to succeed on their argument that the Mandate was

facially unconstitutional. Id.

However, in accordance the City’s concession that the

procedure used in examining the religious exemption requests may

have been “constitutionally suspect” as applied to plaintiffs, the

Second Circuit made the “exceedingly narrow” determination that

the plaintiffs were likely to succeed on their as applied

challenges. Id. at 167. Specifically, the Second Circuit found

that plaintiffs provided evidence that the arbitrators had

evaluated their requests in accordance with the UFT Award’s

standards for a religious exemption, which stated that “requests

shall be denied where the leader of the religious organization has

spoken publicly in favor of the vaccine, where the documentation

is readily available (e.g., from an online source), or where the

objection is personal, political, or philosophical in nature.”

Id. at 168. Therefore, the Court reasoned that:

Denying an individual a religious accommodation based on

someone else’s publicly expressed religious views — even

the leader of her faith —runs afoul of the Supreme

Court’s teaching that “[i]t is not within the judicial

ken to question the centrality of particular beliefs or

practices to a faith, or the validity of

particular litigants’ interpretations of those creeds.”

Id. (quoting Hernandez v. Commissioner, 490 U.S. 680, 699 (1989)

(emphasis in original)).

Accordingly, the Second Circuit ordered that plaintiffs’

requests receive fresh consideration “by a central citywide panel,

which will adhere to the standards of, inter alia, Title VII of

the Civil Rights Act of 1964, rather than the challenged criteria

set forth in . . . the arbitration award . . . .” (hereinafter,

the “Citywide Panel.”) Id. at 162 (internal citations and

quotation marks omitted). Further, the Circuit also stayed the

deadline for plaintiffs to opt into the extended leave program.

Id. It further provided that if a plaintiff’s request for

religious accommodation is granted by the Citywide Panel, the

plaintiff will receive backpay from the date the plaintiff was

placed on leave without pay. Id. The case was subsequently stayed

pending the conclusions of the proceedings before the Citywide

Panel. ECF No. 80.

D. The Citywide Panel Reviews Plaintiffs’ Claims

Subsequently, each of the named plaintiffs who were then a

part of this case had their claims reviewed by the Citywide Panel.12

Plaintiffs allege that the Citywide Panel “rubber-stamped” the

denials, although they acknowledge that plaintiff Castro’s request

for a religious accommodation was granted by the Citywide Panel

and that he was reinstated with backpay. ACC ¶¶ 835, 271.

Likewise, plaintiffs concede that in each denial, the Citywide

Panel noted that the “it would be an undue hardship” for the DOE

to allow unvaccinated teachers to enter school buildings. Id. ¶

158. Plaintiffs filed a letter informing the Court that the

Citywide Panel had concluded its review on December 11, 2021. ECF

No. 85.

E. Subsequent Procedural History

During the pendency of the appeal and the stay, the Kane

plaintiffs twice attempted to amend their complaint to add class

allegations, ECF No. 74, and requested leave to file a motion for

class certification, ECF No. 83. Judge Caproni denied these

12 Plaintiffs Grimando, Giammarino, LoParrino, Weber, Bryan, and Solon were

added to this case in the ACC. ECF No. 102.

requests because the Second Circuit had not yet issued a mandate

remanding the case to her and because the Citywide Panel had not

yet concluded its decision-making process. ECF No. 80 at 2, 84 at

2. On December 11, 2021, after receiving the outcome of their

appeals to the Citywide Panel, plaintiffs filed an additional

motion for a preliminary injunction and a motion to certify a

class.13 ECF No. 85. Judge Caproni denied both motions, reasoning

that the plaintiffs had not shown irreparable harm, likelihood of

success on the merits, or pled class allegations in the operative

complaints. ECF No. 90. She further ordered that the Kane and

Keil cases be consolidated, as neither party objected to

consolidation, and gave the plaintiffs leave to file an amended

complaint. Id.

On December 15, 2021, plaintiffs appealed Judge Caproni’s

denial. ECF No. 91. Subsequently, on December 17, 2021, they

again asked Judge Caproni to stay the enforcement of the Vaccine

Mandate pending the resolution of their appeal. ECF No. 92. Judge

Caproni denied the request. ECF No. 93. Thereafter, plaintiffs

sought a stay from the Second Circuit, which stayed the deadline

for plaintiffs in this action to opt-in to the extended leave

13 Plaintiffs initially received notices that they would be placed on leave

without pay within three business days if they did not submit proof of

vaccination. Keil v. City of New York, No. 21-3043-CV, 2022 WL 619694, at *3

(2d Cir. Mar. 3, 2022). The City thereafter explained that these notices were

erroneously sent to plaintiffs, and that plaintiffs had 14 days to opt into the

DOE’s leave without pay package. Id.

program and ordered that no further steps be taken to terminate

the named plaintiffs in this action for noncompliance with the

Mandate during the pendency of the appeal. ECF No. 94.

Subsequently, the Second Circuit denied plaintiffs’ motion for a

preliminary injunction, ECF No. 108, and affirmed Judge Caproni’s

decision in its entirety, ECF No. 116.

Defendants moved to dismiss on February 14, 2022. ECF No.

111. Plaintiffs filed their opposition on March 30, 2022. ECF

No. 119 (“Opp.”). That motion was fully briefed as of April 22,

2022. See ECF No. 151. During the briefing on the motion to

dismiss, on April 12, 2022, plaintiffs moved for a preliminary

injunction for the fourth time. ECF No. 121. On April 29, 2022,

Judge Caproni informed the parties that she would decide the motion

to dismiss and the motion for preliminary injunction in tandem.

ECF No. 157. The motion for a preliminary injunction was fully

briefed on May 20, 2022. See ECF No. 168.

On June 9, 2022, plaintiffs moved to disqualify Judge Caproni,

citing her decisions against them and her ownership of Pfizer

stock. ECF No. 171, 172. Although Judge Caproni noted that she

doubted there was any actual conflict, as she doubted that the

resolution of the merits of the case would have any meaningful

impact on Pfizer stock, she decided to recuse herself “out of an

abundance of caution and to avoid even the possible appearance of

any bias or prejudice.” ECF No. 175 at 2-3. The case was

subsequently briefly assigned to Judge Ramos before being assigned

to this Court. Plaintiffs sought to disqualify this Court on June

14, 2022. ECF No. 179. This Court made clear that there is no

disqualifying conflict in responses dated June 15, 2022, ECF No.

180, and June 22, 2022, ECF No. 182.

II. Legal Standard

A. Motion to Dismiss

To withstand a Rule 12(b)(6) motion, the non-movant’s

pleading “must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

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 misconduct alleged.” Id. While the Court accepts

the truth of the allegations as pled, “[t]hreadbare recitals of

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

statements, do not suffice and we are not bound to accept as true

a legal conclusion couched as a factual allegation.” Brown v.

Daikin Am., Inc., 756 F.3d 219, 225 (2d Cir. 2014) (citations and

internal quotation marks omitted).

When ruling on a motion to dismiss pursuant to Rule 12(b)(6),

a district court may consider “the facts alleged in the pleadings,

documents attached as exhibits or incorporated by reference in the

pleadings and matters of which judicial notice may be taken.”

Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993).

B. Preliminary Injunction

“When a preliminary injunction will affect government action

taken in the public interest pursuant to a statute or regulatory

scheme, the moving party must demonstrate (1) irreparable harm

absent injunctive relief, (2) a likelihood of success on the

merits, and (3) public interest weighing in favor of granting the

injunction.” Kane, 19 F.4th at 163 (citing Agudath Isr. of Am. v.

Cuomo, 983 F.3d 620, 631 (2d Cir. 2020).

III. Discussion

Plaintiffs bring no fewer than 30 causes of action, under

both federal and state law, challenging the Vaccine Mandate. We

first consider their federal claims.

A. Free Exercise Challenge

Plaintiffs first allege that the Vaccine Mandate violates the

Free Exercise clause. The Free Exercise Clause of the First

Amendment provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof ....” U.S. CONST., amend. I; see Cantwell v. Connecticut,

310 U.S. 296, 303 (1940) (incorporating the Free Exercise Clause

against the states). “The free exercise of religion means, first

and foremost, the right to believe and profess whatever religious

doctrine one desires.” Employment Div., Dept. of Human Resources

of Oregon v. Smith, 494 U.S. 872, 877 (1990). “The Free Exercise

Clause thus protects an individual’s private right to religious

belief, as well as ‘the performance of (or abstention from)

physical acts that constitute the free exercise of religion.’”

Kane, 19 F.4th at 163–64 (quoting Cent. Rabbinical Cong. of U.S.

& Can. v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183,

193 (2d Cir. 2014)). “In order to prevail on a Free Exercise

Clause claim, a plaintiff generally must establish that ‘the object

of [the challenged] law is to infringe upon or restrict practices

because of their religious motivation,’ or that its ‘purpose . .

. is the suppression of religion or religious conduct.’” Okwedy v.

Molinari, 69 Fed. App’x. 482, 484 (2d Cir. 2003) (alterations in

original) (citing Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 533 (1993)).

Importantly, the protection of the Free Exercise clause “does

not relieve an individual of the obligation to comply with a valid

and neutral law of general applicability.” Smith, 494 U.S. at

879. “Where the government seeks to enforce a law that is neutral

and of general applicability . . . it need only demonstrate a

rational basis for its enforcement, even if enforcement of the law

incidentally burdens religious practices.” Fifth Ave.

Presbyterian Church v. City of New York, 293 F.3d 570, 574 (2d

Cir. 2002); see Cent. Rabbinical Cong., 763 F.3d at 193 (“[T]he

Free Exercise Clause “does not relieve an individual of the

obligation to comply with a valid and neutral law of general

applicability on the ground that the law proscribes (or prescribes)

conduct that his religion prescribes (or proscribes).”). However,

laws and government policies that are either non-neutral or not

generally applicable are subject to “strict scrutiny,” meaning

that they must be “narrowly tailored” to serve a “compelling” state

interest. Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct.

63, 67 (2020); see Fulton v. City of Philadelphia, 141 S. Ct. 1868,

1881 (2021) (“A government policy can survive strict scrutiny under

only if it advances interests of the highest order and is narrowly

tailored to achieve those interests.”) (internal quotation marks

and citation omitted).

1. The Vaccine Mandate is Facially Neutral and Generally

Applicable

The Second Circuit has already found that “[t]he Vaccine

Mandate, in all its iterations, is neutral and generally

applicable.” Kane, 19 F.4th at 164. Nevertheless, plaintiffs

rehash arguments the Second Circuit has already rejected, and ask

us to revisit this conclusion, arguing that the Court should apply

strict scrutiny (1) because of a purported animus held by City and

State officials and (2) because (contrary to the Second Circuit’s

view), it is not generally applicable.14 Neither argument is

meritorious.

14 Although the Second Circuit’s opinions regarding the plaintiffs’ prior

motions for preliminary injunctions span 53 pages and deliver carefully

a. There Is No Evidence of “Animus”

Ignoring the fact that the pandemic has claimed the lives of

more than a million people in the United States, plaintiffs take

the bold position that the Mandate has the “express purpose of

inflicting special disability against minority religious

viewpoints,” Opp. at 4, rather than its obvious and explicit goals

to, inter alia, “potentially save lives, protect public health,

and promote public safety.” Vaccine Mandate at 2. Plaintiffs

argue that this case is analogous to Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). There, the

Supreme Court found that a series of laws enacted with the purpose

of preventing members of a religion from ritualistically

sacrificing animals in accordance with their beliefs violated the

Free Exercise clause. Id. at 524. The record of animus was clear;

for example, the Supreme Court noted that “almost the only conduct

subject to [the challenged ordinances] is the religious exercise

of Santeria church members. The texts show that they were drafted

in tandem to achieve this result.” Id. at 535. Here, there is no

such record. Instead, the Mandate lays out its reasoning, noting

considered holdings on substantive issues in this case, including on the issue

of whether the Mandate is neutral and generally applicable, plaintiffs assert

that we should review their claims de novo both in light of the differing

standards for a preliminary injunction and a motion to dismiss and in light of

the new facts they allege in their consolidated amended complaint. See Opp. at

5. Even assuming arguendo that we should review plaintiffs’ claims de novo, we

would independently concur with the Second Circuit’s reasoning and reach the

same conclusion: namely, that plaintiffs’ facial challenge to the Mandate fails.

that the CDC has found that “vaccination is an effective tool to

prevent the spread of COVID-19 and benefits both vaccine recipients

and those they come into contact with, including persons who for

reasons of age, health, or other conditions cannot themselves be

vaccinated,” and is “the most critical strategy to help schools

safely resume full operations [and] is the leading public health

prevention strategy to end the COVID-19 pandemic.” Vaccine Mandate

at 1 (alteration in original). This Court, like the other Courts

which have considered this Mandate, find that the clear object of

the Mandate is to reduce the spread of COVID-19 in New York’s

schools and permit them to open. See, e.g., Kane, 19 F.4th at 172

(holding “[t]he Vaccine Mandate . . . is designed to further the

compelling objective of permitting schools fully to reopen[.]”);

Maniscalco v. New York City Dep’t of Educ., 563 F. Supp. 3d 33, 39

(E.D.N.Y. 2021) (“[E]ven if plaintiffs disagree with it, the

[Mandate] at issue represents a rational policy decision

surrounding how best to protect children during a global

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

2021), cert. denied, 142 S. Ct. 1668 (2022); Broecker v. New York

City Dep’t of Educ., 573 F. Supp. 3d 878, 891 (E.D.N.Y. 2021)

(holding Vaccine Mandate served a “obvious, significant

governmental interest in preventing transmission of the COVID-19

virus and protecting students”); New York City Mun. Lab. Comm. v.

City of New York, 73 Misc. 3d 621, 628 (N.Y. Sup. Ct., N.Y. Cty.

2021) (noting Mandate represents “the reasoned views and

directives of public health officials seeking to best protect the

health and welfare of children”).

Plaintiffs assert that statements made by City and State

officials and the existence of the prior arbitration scheme are

evidence of animus. The Second Circuit has already rejected the

argument that Mayor De Blasio’s and Governor Hochul’s statements

reflect animus. Kane, 19 F.4th at 165 (“[T]hese statements

reflect nothing more than the Mayor’s personal belief that

religious accommodations will be rare, as well as general support

for religious principles that [he] believes guide community

members to care for one another by receiving the COVID-19

vaccine.”) (internal quotation marks and citation omitted); We The

Patriots, 17 F.4th at 283 (“Governor Hochul’s expression of her

own religious belief as a moral imperative to become vaccinated

cannot reasonably be understood to imply an intent on the part of

the State to target those with religious beliefs contrary to hers;

otherwise, politicians’ frequent use of religious rhetoric to

support their positions would render many government actions non-

neutral . . . .”). Similarly, Mayor Adams’s statements committing

to keeping schools open reflect a policy decision, not animus

towards any religious group. Moreover, statements made by DOE

officials in applying the overturned UFT Award standards have no

bearing on the current standards, which are applied by a different

panel using different criteria.

b. The Mandate Is Generally Applicable

Plaintiffs’ arguments that the Vaccine Mandate is not

generally applicable again rely on arguments that the Second

Circuit already rejected. Plaintiffs ask us to reconsider the

Second Circuit’s conclusion in light of the number of vaccination

mandates the City has imposed and the fact that the Mayor has

carved out certain exceptions to the private employer vaccination

mandate (a mandate not at issue in this case) through Emergency

Executive Order 62 (“EEO 62”). Opp. at 7-8. The number of

vaccination mandates is plainly irrelevant. At most, the numerous

mandates demonstrate the deep concern of the City to stem the

coronavirus pandemic. As to the second point, plaintiffs’ counsel

seem to have forgotten that, as they conceded at oral argument

before the Second Circuit on the initial preliminary injunction

motions, “a law can be generally applicable when, as here, it

applies to an entire class of people.” Kane, 19 F.4th at 166.

The Vaccine Mandate applies to the class of people who work in the

New York City public schools. The fact that it does not apply to

professional athletes is of no significance here. Indeed, if a

distinction were even needed, it is obvious that New Yorkers may

choose whether to attend a sporting event with unvaccinated

athletes and accept whatever risk those athletes pose. In

contrast, school attendance is not a similar choice, and the risk

posed by unvaccinated teachers is obvious.15 Further, plaintiffs’

argument that these policies demonstrate that strict scrutiny is

required here because the polices “single out secular but not

religious activities for favored treatment,” Opp. at 9, is

confusing and false. Working in a public school is not a religious

activity. See U.S. CONST., amend. I.

Finally, plaintiffs argue that because the DOE provides a

process for applying for religious exemptions, strict scrutiny

must apply because the Citywide Panel considers each request for

a religious exemption individually. In support of this position,

plaintiffs rely on the Supreme Court’s holding in Fulton v. City

of Philadelphia that “[t]he creation of a formal mechanism for

granting exceptions renders a policy not generally applicable . .

. because it invites the government to decide which reasons for

not complying with the policy are worthy of solicitude[.]” 141 S.

Ct. 1868 at 1879 (quotation marks, citation, and alterations

omitted); Opp. at 8. This position does not withstand cursory

analysis. In rejecting a similar argument that the Supreme Court’s

decision in Fulton required strict scrutiny for every religious

15 The Second Circuit has already rejected plaintiffs’ former argument about

an exempt group (emergency responders), finding that “[v]iewed through the lens

of the City’s asserted interest in stemming the spread of COVID-19, these groups

are not comparable to the categories of people that the Mandate embraces. While

the exempt groups do not come into prolonged daily contact with large groups of

students (most of whom are unvaccinated), the covered groups (for example,

teachers) inevitably do.” Kane, 19 F.4th at 166.

exception, a recent decision noted that “such an interpretation

would create a perverse incentive for government entities to

provide no religious exemption process in order to avoid strict

scrutiny.” Ferrelli v. Unified Ct. Sys., No. 22 Civ. 0068 (LEK)

(CFH), 2022 WL 673863, at *7 (N.D.N.Y. Mar. 7, 2022). Here, the

City’s exemptions were provided in accordance with Title VII, which

requires employers to offer reasonable religious accommodations in

certain circumstances, as the Second Circuit provided in its order

requiring the City to establish the Citywide Panel.16 Kane, 19

F.4th at 175. Indeed, as discussed infra, the record shows that

the City only inquired as to whether each plaintiff’s belief was

sincere, and where it determined it was, then proceeded to

determine if a reasonable accommodation could be provided.

Further, we remind plaintiffs that the government faces different

burdens when it, as here, acts as an employer as opposed to a

lawmaker. Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 598

(2008) (“We have long held the view that there is a crucial

16 Plaintiffs also cite to Bear Creek Bible Church v. Equal Emp. Opportunity

Comm’n, 571 F. Supp. 3d 571, 613 (N.D. Tex. 2021), which is currently on appeal,

for the proposition that “[b]ecause Title VII is not a generally applicable due

to the existence of individualized exemptions, the Court finds that strict

scrutiny applies.” Id.; Opp. at 11. Bear Creek is an outlier case. Title

VII, which was passed in 1964, has been routinely analyzed and applied by courts

for over half a century. Moreover, the Second Circuit and Supreme Court do not

apply strict scrutiny in considering Title VII claims. See e.g., Ansonia Bd.

of Educ. v. Philbrook, 479 U.S. 60, 68 (1986) (“We find no basis in either

[Title VII] or its legislative history for requiring an employer to choose any

particular reasonable accommodation.”); Cosme v. Henderson, 287 F.3d 152, 158

(2d Cir. 2002) (“Nevertheless, to avoid Title VII liability, the employer need

not offer the accommodation the employee prefers. Instead, when any reasonable

accommodation is provided, the statutory inquiry ends.”).

difference, with respect to constitutional analysis, between the

government exercising the power to regulate or license, as

lawmaker, and the government acting as proprietor, to manage [its]

internal operation.”) (internal quotation marks and citation

omitted).17

Similarly, we also reject plaintiffs’ argument that because

they have articulated a “hybrid rights” claim, strict scrutiny

applies. The Second Circuit has repeatedly refused to apply strict

scrutiny merely because plaintiffs claim a hybrid rights

violation, reasoning that “[t]he allegation that a state action

that regulates public conduct infringes more than one of a public

employee’s constitutional rights does not warrant more heightened

scrutiny than each claim would warrant when viewed separately.”

Knight v. Connecticut Dep’t of Pub. Health, 275 F.3d 156, 167 (2d

Cir. 2001); see also Leebaert v. Harrington, 332 F.3d 134, 144 (2d

Cir. 2003) (“[A]t least until the Supreme Court holds that legal

standards under the Free Exercise Clause vary depending on whether

other constitutional rights are implicated, we will not use a

stricter legal standard to evaluate hybrid claims.”) (internal

17 Plaintiffs claim in a footnote that Engquist is not applicable because

the Mandate is a regulatory action, “extending beyond government employees and

imposing requirements on patrons and private sector employees.” Opp. at 21 n.

8. Plaintiffs, however, are employees of the DOE and do not have standing to

challenge the aspects of the Vaccine Mandate that apply to contractors or

visitors to public schools.

quotation marks and citation omitted). This precedent binds this

Court.

Thus, we find that rational basis review applies.18 In this

context, plaintiffs claim that the City and DOE have no rational

basis for the Mandate because vaccines cannot completely prevent

the spread of COVID-19, and because other groups, like performers,

are not required to be vaccinated. This argument is not

persuasive. The DOE clearly explained that “a system of

vaccination for individuals working in school settings, including

DOE buildings and charter school buildings, will potentially save

lives, protect public health, and promote public safety.” Vaccine

Mandate at 2. This is an articulated rational, and indeed,

compelling basis. See Kane, 19 F.4th at 172 (“[t]he Vaccine

Mandate . . . is designed to further the compelling objective of

permitting schools fully to reopen[.]”); Roman Cath. Diocese of

Brooklyn, 141 S. Ct. at 67 (“Stemming the spread of COVID–19 is

unquestionably a compelling interest . . . .”).19

18 Plaintiffs argue that the court cannot deviate from strict scrutiny simply

because the case involves public health. Opp. at 18-19. We agree. But

plaintiffs are not correct that strict scrutiny must apply to an immunization

mandate. As the Second Circuit recently stated, “no court appears ever to have

held that Jacobson requires that strict scrutiny be applied to immunization

mandates. To be sure, courts have consistently rejected substantive due process

challenges to vaccination requirements without applying strict scrutiny.” Goe

v. Zucker, No. 21-0537-CV, 2022 WL 3007919, at *8 (2d Cir. July 29, 2022)

(citations omitted).

19 Plaintiffs object that the vaccines are ineffective and that their

“natural immunity” from having contracted the coronavirus would protect them

equally as well as receiving a federally approved and tested vaccine. We

consider the facts set forth in the Mandate as an explanation of the decision-

making of the City and DOE. See Goe, 2022 WL 3007919, at *5 (“[T]o the extent

that the district court relied on facts from the extrinsic materials that were

Because the City had a rational basis for mandating

vaccinations, namely, in order to allow schools to continue in

person safely, plaintiffs’ Free Exercise Claim fails.

B. Establishment Clause

Plaintiffs claim that the Vaccine Mandate also violates the

Establishment Clause because it creates a denominational

preference, in that certain “unorthodox religious denominations”

are more burdened than mainstream denominations.20 Opp. at 15.

This is nothing more than a repackaging of plaintiffs’ free

exercise claims. Plaintiffs point to no case law requiring that

government action impact all religions equally. Indeed, the

Supreme Court has “never held that an individual’s religious

beliefs excuse him from compliance with an otherwise valid law

prohibiting conduct that the State is free to regulate. On the

contrary, the record of more than a century of our free exercise

jurisprudence contradicts that proposition.” Smith, 494 U.S. at

878–79.21

in dispute, it did not rule on the factual accuracy of those materials; instead,

it cited those materials to explain the decision-making of state authorities.”).

Even if plaintiffs’ claims regarding “natural immunity” were true, they would

not be significant as many of the plaintiffs do not allege that they have ever

contracted the coronavirus or have any “natural immunity.”

20 Plaintiffs also mischaracterize the statements of City and State officials

to claim that “the government openly stated that their purpose was to target

certain religious denominations for discriminatory treatment in implementing

the Mandate against religious objectors.” Opp. at 15 (emphasis in original).

For the reasons stated above, see supra at pp. 20-22, this argument fails.

21 Plaintiffs’ citations to the amended consolidated complaint for the

proposition that the DOE is still applying the standards set forth in the UFT

Award are unavailing. See Opp. at 15 (citing ACC 102 ¶ 808, ¶¶ 134-145).

Paragraph 808 states a legal conclusion unrelated to the Establishment Clause

claim: “The DOE violates the Free Exercise Clause every time it applies the

Moreover, the Supreme Court’s recent decision Kennedy v.

Bremerton Sch. Dist. instructs courts “that the Establishment

Clause must be interpreted by reference to historical practices

and understandings.” 142 S. Ct. 2407, 2428 (2022) (internal

quotation marks and citation omitted). We note that there is a

long history of vaccination requirements in this country and in

this Circuit. See, e.g., Jacobson v. Commonwealth of

Massachusetts, 197 U.S. 11, 38 (1905) (upholding smallpox

vaccination mandate); see also Prince v. Massachusetts, 321 U.S.

158, 166–67 (1944) (“[A parent] cannot claim freedom from

compulsory vaccination for the child more than for himself on

religious grounds. The right to practice religion freely does not

include liberty to expose the community or the child to

communicable disease . . . .”); Phillips v. City of New York, 775

F.3d 538, 543 (2d Cir. 2015) (per curiam) (holding that “New York

could constitutionally require that all children be vaccinated in

terms of the Exemption Standards to deny an individual request for religious

exemption.”). “Even under the liberal pleading standard of Federal Rule of Civil

Procedure 8, courts need not credit conclusory allegations, or legal conclusions

without factual allegations.” Glob. View Ltd. Venture Cap. v. Great Cent. Basin

Expl., L.L.C., 288 F. Supp. 2d 482, 484 (S.D.N.Y. 2003). Plaintiffs’

allegations in paragraphs 134-45 similarly either recite legal conclusions or

conclusory allegations (e.g., ¶¶ 140, 144), do not support the proposition

plaintiffs cite them for (e.g., ¶ 139), or do not refer to process applied to

plaintiffs’ requests, but to the process applied to the requests of other

individuals (e.g., ¶ 137-38). Plaintiffs lack standing to challenge procedures

that do not apply to them. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560,

112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992) (holding the “irreducible

constitutional minimum of standing” requires that a plaintiff must have suffered

an “injury in fact.”).

order to attend public school” and that “New York law goes beyond

what the Constitution requires by allowing an exemption for parents

with genuine and sincere religious beliefs”).

C. Equal Protection

Similarly, plaintiffs claim that the Vaccine Mandate violates

the equal protection clause because the mandate is “facially

discriminatory” and impacts unorthodox religious minorities

disproportionately. Opp. at 19-21. As we have already stated,

the Mandate is facially neutral and generally applicable.

Moreover, the fact that certain individuals have religious

objections to the Mandate does not, contrary to plaintiffs’

opposition brief, provide plaintiffs with a “per se victory”, id.

at 19-20. “[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). Plaintiffs

point to no similarly situated persons who have been treated

differently - indeed, they do not point to any DOE employee who

has been granted a religious exemption to the Vaccine Mandate and

been permitted to work in person. Since there is no claim of

differential treatment, plaintiffs’ equal protection claim fails.

D. Due Process

Plaintiffs also claim that their substantive and procedural

due process rights were violated by the Vaccine Mandate. Both

arguments fail.

1. Substantive Due Process

“Substantive due process rights safeguard persons against the

government’s exercise of power without any reasonable

justification in the service of a legitimate governmental

objective.” Southerland v. City of New York, 680 F.3d 127, 151

(2d Cir. 2012) (internal quotation marks and citation omitted).

To analyze a claim under substantive due process, courts perform

a two-step analysis. Hurd v. Fredenburgh, 984 F.3d 1075, 1087-89

(2d Cir. 2021).

“The first step in substantive due process analysis is to

identify the constitutional right at stake.” Kaluczky v. City of

White Plains, 57 F.3d 202, 211 (2d Cir. 1995). Here, plaintiffs

cite to the “basic, and sacred, natural right to control one’s own

body, and care for it as one best sees fit, in accordance with

one’s creed and religious beliefs, as well as one’s best judgment

in independent consultation with one’s doctor.” Opp. at 17.22 But

“[b]oth [the Second Circuit] and the Supreme Court have

consistently recognized that the Constitution embodies no

22 The Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health

Org., 142 S. Ct. 2228 (2022) makes clear that to the extent this right exists,

it is not absolute.

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,

17 F.4th at 293; id. at n. 35 (“This Court cannot find an overriding

privacy right when doing so would conflict with Jacobson [which]

for over 100 years [] has stood firmly for the proposition that

the urgent public health needs of the community can outweigh the

rights of an individual to refuse vaccination.”). Moreover, the

Second Circuit has also held that the “[p]laintiffs are not

required [by the Vaccine Mandate] to perform or abstain from any

action that violates their religious beliefs.” Kane, 19 F.4th at

172; id. at 171 (“The City is not threatening to vaccinate

Plaintiffs against their will and despite their religious

beliefs[.]”). Indeed, all but one plaintiff remain unvaccinated.23

Moreover, plaintiffs have no constitutional right to work

in person with children in the New York City public schools. See

Maniscalco, 563 F. Supp. 3d at 39 (holding no fundamental

constitutional right is infringed by the Vaccine Mandate because,

inter alia, “plaintiffs may pursue teaching or paraprofessional

jobs at private schools in New York City, public and private

schools outside of New York City, daycares or early childhood

23 Plaintiff Solon appears to have chosen to be vaccinated. See ECF No. 166

¶ 9.

education centers, tutoring centers, adult or continuing education

centers, virtual institutions, or within home settings”).

Even if a fundamental right were at issue, plaintiffs’

arguments fail at the second step of the analysis. At the second

step, plaintiffs “must demonstrate that the state action was so

egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience” such that the Due Process Clause “would

not countenance it even were it accompanied by full procedural

protection.” Hurd, 984 F.3d at 1087 (internal quotation marks and

citation omitted). As discussed, supra, there is a long history

of mandatory vaccination laws in this country. As the Maniscalo

court found, “Requiring that DOE employees take a dose of

ivermectin as a condition of employment might qualify as ‘a plain,

palpable invasion’ of such rights, not having any real relation to

the public health crisis. However, mandating a vaccine approved

by the FDA does not.” Maniscalco, 563 F. Supp. 3d at 39.24

24 Plaintiffs assert that the COVID-19 vaccines available in New York City

are “experimental,” and that this disputed issue of fact precludes a motion to

dismiss. Opp. at 25-27. While at one time, the COVID-19 vaccines were only

authorized for emergency use, that is no longer the case, and as explained

above, the Vaccine Mandate was only promulgated after the FDA had fully approved

a COVID-19 vaccine. The Court takes judicial notice of the fact that both the

Pfizer-BioNTech (COMIRNATY) COVID-19 vaccine and the Moderna (Spikevax) COVID-

19 vaccine have been fully approved by the FDA for use in people 16 years and

older and found by the FDA to meet high standards for safety, effectiveness,

and manufacturing quality. See Developing COVID-19 Vaccines, Centers for

Disease Control,(July 20, 2022), https://www.cdc.gov/coronavirus/2019-ncov/va

ccines/distributing/steps-ensure-safety.html?s_cid=11700:covid%20vaccine%20fd

a%20approval:sem.ga:p:RG:GM:gen:PTN:FY22 (stating the “FDA has granted full

approval for Pfizer-BioNTech (COMIRNATY) COVID-19 Vaccine for people ages 16

years and older and for Moderna (Spikevax) COVID-19 Vaccine for people ages 18

years and older . . . . These vaccines were found to meet the high standards

for safety, effectiveness, and manufacturing quality FDA requires of an approved

Accordingly, plaintiffs have not stated a claim for substantive

due process.

2. Procedural Due Process

Plaintiffs have also failed to state a claim for violations

of procedural due process. “In order to succeed on a claim of

deprivation of procedural due process, a plaintiff must establish

that state action deprived him of a protected property or liberty

interest.” White Plains Towing Corp. v. Patterson, 991 F.2d 1049,

1061–62 (2d Cir. 1993). For the reasons already set out, there is

no protected liberty interest. Further, plaintiffs do not dispute

that teachers who do not have a tenure do not have a property

interest in their employment. See Biehner v. City of New York,

No. 19 Civ. 9646 (JGK), 2021 WL 878476, at *4 (S.D.N.Y. Mar. 9,

2021). As such, only plaintiffs Kane, Smith, Keil, Delgado, and

Strk even have a property interest at stake. Am. Compl. ¶¶ 227,

445, 495, 540, 574.

Moreover, the Second Circuit has “held on several occasions

that there is no due process violation where, as here, pre-

product.”). Further, the Court takes judicial notice of the fact that these

vaccines are widely available in New York City. See COVID-19 Vaccine Locations,

Vaccines.gov, https://www.vaccines.gov/results/?zipcode=10007&medicationGuids=

6e9b0945-9b98-4df4-8d10-c42f526eed14,cd62a2bb-1e1e-4252-b441-68cf1fe734e9,784

db609-dc1f-45a5-bad6-8db02e79d44f&medicationKeys=pfizer_comirnaty_covid_19_va

ccine,moderna_spikevax_covid_19_vaccine,j%26j_janssen_covid_19_vaccine&appoin

tments=true (displaying numerous locations where fully approved vaccines are

available)(last visited Aug. 25, 2022). As such, the Court rejects the

plaintiffs’ arguments premised on the assertion that the vaccines fully approved

by the FDA are not available in New York. See Opp. at 25-27 (arguing that the

Mandate is unconstitutional because the COVID-19 vaccines available in New York

are only approved under an Emergency Use Authorization).

deprivation notice is provided and the deprivation at issue can be

fully remedied through the grievance procedures provided for in a

collective bargaining agreement.” See Adams v. Suozzi, 517 F.3d

124, 128 (2d Cir. 2008). “Pre-deprivation processes need not be

elaborate, and the Constitution mandates only that such process

include, at a minimum, notice and the opportunity to respond.”

Garland v. New York City Fire Dep’t, No. 21 Civ. 6586 (KAM) (CLP),

2021 WL 5771687, at *7 (E.D.N.Y. Dec. 6, 2021). Here, that notice

and opportunity were plainly given. The amended consolidated

complaint describes in detail how plaintiffs received notice of

the Citywide Panel and the standards it would apply, that they had

an opportunity to submit materials in support of their

accommodation requests to the Citywide Panel, and the Citywide

Panel issued written explanations for each of the named plaintiffs,

clearly spelling out how it reached its conclusions.25 See, e.g.,

ACC ¶¶ 235-36, 263-65, 271, 292, 293, 297-98, 314-20, 328, 335,

338, 362, 367-68, 382-83, 408-09, 426-28, 483-88, 498, 500-12,

522-36, 553-69, 582-92, 613-26, 669, 680, 693-95, 726-28, 750,

769-73, 778-79; see also ECF No. 122-2 (setting forth the Citywide

Panel’s reasoning in reaching its decision regarding each

plaintiff). Moreover, plaintiffs have the ability to challenge

25 This Court, having found that strict scrutiny does not apply in this case,

finds plaintiffs’ assertion that the Citywide Panel had to provide plaintiffs

with a response that could survive strict scrutiny in order to avoid violating

plaintiffs’ constitutional rights, Opp. at 23-24, without foundation.

any decision terminating their employment through their collective

bargaining agreement, or through an Article 78 proceeding.26

Sindone v. Kelly, 439 F. Supp. 2d 268, 278 (S.D.N.Y. 2006) (“[T]he

Second Circuit has gone to considerable lengths to recognize the

adequacy of Article 78 procedures as affording adequate safeguards

to satisfy federal procedural due process standards.”).

E. Plaintiffs Have Not Pled As-Applied Claims

Further, the Mandate is not unconstitutional as applied to

the plaintiffs. As a threshold matter, two of plaintiffs (Ruiz-

Toro and Castro) have had their requests for religious

accommodation granted.27 ACC ¶¶ 271, 488. While these plaintiffs

may have preferred a different accommodation, “where the employer

has already reasonably accommodated the employee’s religious

needs, the statutory inquiry is at an end. The employer need not

further show that each of the employee’s alternative

accommodations would result in undue hardship.” Ansonia Bd. of

Educ. v. Philbrook, 479 U.S. 60, 68 (1986); see also We The

Patriots USA, 17 F.4th at 292 (“Title VII does not require covered

entities to provide the accommodation that Plaintiffs prefer—in

this case, a blanket religious exemption allowing them to continue

working at their current positions unvaccinated.”).

26 Indeed, plaintiff Giammarino appears to have filed an Article 78

proceeding. See Giammarino v. Board of Education et al., Index No. 160829/2021

(N.Y. Sup. Ct., N.Y. Cty. Jan. 18, 2021).

27 Specifically, these plaintiffs were given permission to work remotely,

but cannot enter DOE school buildings. ACC ¶¶ 281, 488-89.

Likewise, plaintiffs Grimando, Giammarino, LoParrino, Weber,

and Smith did not avail themselves of the process for seeking a

religious exemption set out by the DOE, and so have not stated a

due process claim.28 “Plaintiffs are not entitled to circumvent

established due process protections and then claim they were never

afforded such protections.” Capul v. City of N.Y., No. 19 Civ.

4313 (KPF), 2020 WL 2748274, at *13 (S.D.N.Y. May 27, 2020), aff’d

832 F. App’x. 766 (2d Cir. 2021); see also Garland, 574 F. Supp.

3d at 130 (finding no due process violation where plaintiffs chose

not to participate in the process of requesting vaccination waivers

by the deadline). As such, these plaintiffs have failed to state

a claim.29

The remainder of the plaintiffs had their claims reviewed by

the Citywide Panel. While plaintiffs have pled that the Citywide

Panel just “rubber-stamped” the plaintiffs’ previous denials in

“bad faith,” ACC ¶¶ 140, 835, these assertions are insufficient to

state a claim. Amron v. Morgan Stanley Inv. Advisors Inc., 464

F.3d 338, 344 (2d Cir. 2006) (holding that in opposing a motion to

dismiss, “bald assertions and conclusions of law will not

suffice”). Moreover, these conclusory allegations are

28 Specifically, plaintiff Grimando did not submit a timely religious

exemption, although she did submit a timely medical exemption. ACC ¶¶ 668-69.

Plaintiffs Giammarino and LoParrino opted not to submit a request for an

exemption through the SOLAS portal, as required, but instead sent separate

letters to DOE. Id. ¶¶ 733-34, 769. Plaintiff Weber chose not to appeal his

denial of a religious exemption. Id. ¶ 652.

29 Plaintiff Solon has apparently decided to be vaccinated, and as such, her

claims are moot. See ECF No. 166 ¶ 9.

contradicted by the fact that the Citywide Panel reversed the

arbitrators’ denial of plaintiff Castro’s religious accommodation.

ACC ¶¶ 269, 271.

Further, while plaintiffs criticize the process by which the

Citywide Panel evaluated their applications as improperly

disregarding their religious beliefs, only one of the Citywide

Panel’s decisions turned on whether the plaintiffs had a sincere

religious belief.30 In all other circumstances in which it denied

a plaintiff’s request for a religious accommodation, the Citywide

Panel found that the plaintiff’s request presented an “undue

hardship” because the plaintiff “is a classroom teacher who, under

the present circumstances, cannot physically be in the classroom

while unvaccinated without presenting a risk to the vulnerable and

still primarily unvaccinated student population.”31 See, e.g., ACC

¶¶ 158, 512 (denying Keil’s appeal), 536 (denying De Luca’s

appeal), 569 (denying Delgado’s appeal), 592 (denying Strk’s

appeal), 626 (denying Buzaglo’s appeal), see also ECF No. 122-2

(setting forth Citywide Panel’s reasoning regarding each

30 Plaintiff Clark’s appeal was denied because the panel found that her

decision to not receive a vaccination was not based on her religious belief,

but rather, on non-religious sources. ECF No. 122-2 at 2. This is entirely

proper - under Title VII, an employer may inquire into whether an employee has

“a genuine religious practice that conflicts with a requirement of employment.”

Bind v. City of New York, No. 08 Civ. 11105 (RJH), 2011 WL 4542897, at *10

(S.D.N.Y. Sept. 30, 2011) (holding “[a]n employer asked to grant a religious

accommodation is permitted to examine whether the employee’s beliefs regarding

the accommodation are sincerely held” and collecting cases).

31 Plaintiffs’ argument that they can work remotely as they did when the

City’s schools were remote fails, because the City and DOE have decided to

return to in-person learning.

plaintiff’s appeal). These findings satisfied the requirements of

Title VII. Under Title VII “when an employee has a genuine

religious practice that conflicts with a requirement of

employment, his or her employer, once notified, must offer the

aggrieved employee a reasonable accommodation, unless doing so

would cause the employer to suffer an undue hardship.” Cosme v.

Henderson, 287 F.3d 152, 158 (2d Cir. 2002). “An accommodation is

said to cause an undue hardship whenever it results in ‘more than

a de minimis cost’ to the employer.” Baker v. The Home Depot, 445

F.3d 541, 548 (2d Cir. 2006) (quoting Trans World Airlines, Inc.

v. Hardison, 432 U.S. 63, 84 (1977)). Plaintiffs’ inability to

teach their students safely in person presents more than a de

minimis cost.

Further, we note that the Second Circuit and other courts in

have repeatedly found that vaccination against COVID-19 is a proper

condition of employment. See, e.g., We the Patriots, 17 F.4d at

294 (holding vaccination was a condition of employment for

healthcare workers); Garland, 574 F. Supp. 3d at 129 (concluding

that vaccination was a condition of employment under a Health

Commissioner Order applicable to City employees); Broecker v. New

York Dept. of Educ., No. 21 Civ. 6387 (KAM) (LRM), 2022 WL 426113,

at *8 (E.D.N.Y. Feb. 11, 2022) (holding vaccination was a condition

of employment for NYC DOE employees); O’Reilly v. The Bd. of Educ.

of the City School Dist. of the City of New York, No. 161040/2021,

2022 WL 180957, at *3 (N.Y. Sup. Ct., N.Y. Cty. Jan. 20, 2022)

(same). Thus, “[t]he termination of NYC DOE employees who failed

to comply with the COVID-19 vaccination condition of employment is

not disciplinary. Rather, [p]laintiffs’ separation is [be]cause of

their failure to avail themselves of existing processes or comply

with a lawful job condition.” Broecker, 2022 WL 426113, at *11.

As the DOE has provided notice and processes that comport with

Constitutional due process before and after termination, see supra

pp. 35-36, no additional process is required. Broecker, 2022 WL

426113, at *11.

F. The State Law Claims Are Dismissed for Lack of

Supplemental Jurisdiction

As there are no remaining federal claims, this Court declines

to exercise supplemental jurisdiction over the state law claims.32

Pursuant to 28 U.S.C. § 1367(c)(3), a district court “may decline

to exercise supplemental jurisdiction over a claim” where “the

district court has dismissed all claims over which it has original

jurisdiction.” 28 U.S.C. § 1367(c)(3); see also Carnegie–Mellon

Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988) (“[I]n the usual

case in which all federal-law claims are eliminated before trial,

the balance of factors to be considered under the pendent

32 While plaintiffs have also pled a claim for a violation of Section 1983,

“Section 1983 does not create any independent substantive right, but rather is

a vehicle to ‘redress . . . the deprivation of [federal] rights established

elsewhere.’” Laface v. Eastern Suffolk BOCES, 349 F. Supp. 3d 126, 153 (E.D.N.Y.

2018) (quoting Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999)). As such,

this claim is dismissed.

jurisdiction doctrine — judicial economy, convenience, fairness,

and comity — will point toward declining to exercise jurisdiction

over the remaining state-law claims.”). We therefore do not

address the arguments regarding state law claims.

G. The Preliminary Injunction is Denied

Plaintiffs have also moved again for a preliminary

injunction. “When a preliminary injunction will affect government

action taken in the public interest pursuant to a statute or

regulatory scheme, the moving party must demonstrate (1)

irreparable harm absent injunctive relief, (2) a likelihood of

success on the merits, and (3) public interest weighing in favor

of granting the injunction.” Kane, 19 F.4th at 163. As Judge

Caproni and the Second Circuit have held, having found no violation

of a Constitutional right, “the only alleged harm is economic, and

it can be remedied by money damages, were the [p]laintiffs to

prevail on the merits of the litigation.” Kane v. de Blasio, 575

F. Supp. 3d 435, 441 (S.D.N.Y. 2021), aff’d sub nom. Keil v. City

of New York, No. 21-3043-CV, 2022 WL 619694 (2d Cir. Mar. 3, 2022).

Moreover, for the foregoing reasons, plaintiffs have not stated a

claim and therefore have not demonstrated a likelihood of success

on the merits. Finally, plaintiffs have not demonstrated that the

public interest weighs in their favor. There is a strong public

interest in vaccination to support the City’s schools safe

reopening and to allow the children who attend daily to learn with

as little risk as possible to them and their families. As such,

the preliminary injunction is denied.*

Iv. Conclusion

For the foregoing reasons, this Court denies the motion for

a preliminary injunction and dismisses plaintiffs’ complaint in

its entirety with prejudice. The Clerk of Court is respectfully

directed to terminate the open motions and close this case.

SO ORDERED.

Dated: New York, New York

August 26, 2022

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A git! Pe fal cd Le £ pemhel

NAOMI REICE BUCHWALD

UNITED STATES DISTRICT JUDGE

33 Plaintiffs’ request to supplement the preliminary injunction record with

the May 24, 2022 deposition transcript of Eric Eichenholtz, ECF No. 167, is

denied because the request is procedurally improper and because consideration

of the transcript would not alter our decision. First, we note that plaintiffs

have already filed the transcript, despite the fact that they are purporting to

request leave to do so. This filing violates the Individual Practices of Judge

Caproni, who was presiding at the time the transcript was filed, which

explicitly state “[t]he Court will not search through the record in support of

facts relevant to a party’s claim or defense.” Individual Practices in Civil

Cases of Judge Caproni, 4.H.ii.e. Second, as noted supra at pp. 24-25, we find

plaintiffs’ argument that the individual consideration that plaintiffs asked

for and were granted by the Citywide Panel triggered strict scrutiny under

Fulton unpersuasive. But even if we accepted plaintiffs’ argument, it would

not alter the result, as we would still deny the preliminary injunction because

plaintiffs have failed to meet each and every prong of the preliminary

injunction analysis.

42