Women of Color for Equal Justice v. The City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Sara Coombs-Moreno, et al.,

Plaintiffs, MEMORANDUM & ORDER

22-CV-02234(EK)(LB)

-against-

The City of New York, et al.,

Defendants.1

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ERIC KOMITEE, United States District Judge:

The plaintiffs in this case are current and former

employees of several New York City agencies. During the COVID-

19 pandemic, they refused (for religious, medical, or

philosophical reasons) to be vaccinated. Many (but not all) of

them suffered employment-related consequences as a result. They

brought this action in response, arguing that the City’s vaccine

mandate violated various federal constitutional and statutory

provisions.

The defendants have moved to dismiss plaintiffs’

claims pursuant to Federal Rule of Civil Procedure 12(b)(6).2

For the following reasons, that motion is granted, except with

1 The Clerk of the Court is respectfully directed to amend the caption

as set out here.

2 Defendants are the City of New York, Mayor Eric Adams, the New York

City Department of Health and Mental Hygiene, Dr. Ashwin Vasan in his

capacity as Commissioner of the Department of Health and Mental Hygiene, the

New York City Department of Education, and Does 1-20.

respect to plaintiff Amoura Bryan’s Title VII and New York City

Human Rights Law claims against New York City and the Department

of Education.3

Background

The following facts are taken from the Fourth Amended

Complaint and certain court documents of which the Court may

take judicial notice. ECF No. 88; see Kramer v. Time Warner

Inc., 937 F.2d 767, 774 (2d Cir. 1991). Plaintiffs cite over

1300 pages of exhibits attached to the FAC, including a number

of affidavits from plaintiffs and putative experts and reams of

OSHA regulations. At the motion to dismiss stage, the Court

need not wade through materials that are not “written

instruments” under Federal Rule of Civil Procedure 10(c). See

Smith v. Hogan, 794 F.3d 249, 254-55 (2d Cir 2015);4 see also

Jackson v. Nassau Cnty., 552 F. Supp. 3d 350, 367 (E.D.N.Y.

3 The municipal defendants are the City of New York, the New York City

Department of Health and Mental Hygiene, and the New York City Department of

Education. The Department of Health and Mental Hygiene is suable. See N.Y. Educ.

Law § 2551; N.Y.C. Charter Ch. 22, § 564 (“The department may sue and be sued in and

by the proper name of ‘Department of Health and Mental Hygiene of the City of New

York.’”). The Second Circuit has noted that whether the DOE is a non-suable agency of

the City is “unclear.” Broecker v. New York City Dep't of Educ., No. 23-655, 2023 WL

8888588, at *1 n.2 (2d Cir. Dec. 26, 2023). However, for the reasons set out in

Brainbuilders LLC v. EmblemHealth, Inc., No. 21-CV-4627, 2022 WL 3156179, at *13

(S.D.N.Y. Aug. 8, 2022), the Court concludes that the Department of Education is a

suable entity.

4 In Smith, the Second Circuit held that the plaintiff’s affidavit was

not a written instrument “or otherwise properly considered to be part of the

complaint,” per Rule 10(c). Id. The panel reasoned that “treating the

affidavit as part of the complaint would do considerable damage to Rule

8(a)’s notice requirement” — indeed, the “requirement of a short and plain

statement of a claim for which relief could be granted would be eviscerated.”

Id.

2021) (declining to consider 56 exhibits attached to plaintiff’s

Second Amended Complaint when deciding a motion to dismiss).

Between August and December 2021, in response to the

COVID-19 pandemic, the New York City Commissioner of Health and

Mental Hygiene issued nine orders requiring certain individuals

to be vaccinated against COVID-19. ECF Nos. 17-19 to 17-27.

These included employees and contractors of the City Department

of Education, along with certain other City employees and

contractors, childcare workers, nonpublic school staff, and

employees of private businesses. Id. All vaccine orders have

since been lifted.5

Not all plaintiffs complain of the same harms. Some

allege that after they refused to be vaccinated, they were

placed on leave without pay and have been “locked out of their

jobs” since September 2021.6 Fourth Am. Compl. (FAC) ¶ 11, ECF

No. 88. Other plaintiffs remain gainfully employed; they allege

that they originally refused the COVID-19 vaccine but were

“coerced” into vaccination by the threat of leave without pay.

See, e.g., id. ¶¶ 11, 19, 37-38, 88. Plaintiffs also allege

that some (unnamed) individuals were harmed by the City’s

5 See Order of the Board of Health to Amend the Requirement for COVID-19

Vaccination for City Employees and Employees of Certain City Contractors

(Feb. 9, 2023); Order of the Board of Health Amending COVID-19 Vaccination

Requirements for Department of Education Employees, Contractors, Visitors and

Others (Feb. 9, 2023).

6 Based on plaintiffs’ allegations, the continued lock-out appears to be

involuntary. See FAC ¶ 11.

alleged misrepresentations regarding the effectiveness of the

vaccines. Id. ¶ 11(c). No individual plaintiff expressly

alleges membership in this latter group.

The complaint invokes the “biblical practice of plant-

based lifestyle medicine” and other unspecified religious,

medical, and philosophical beliefs as the root of Plaintiffs’

objection to receiving the COVID-19 vaccination. See, e.g., id.

¶¶ 16-18, 20-36, 138-42. Only one plaintiff alleges a more

specific description of her religious beliefs. Amoura Bryan

exercised her right to refuse the Covid-19 vaccine so

that she could practice her religious Biblical medical

practice of Plant-Based Lifestyle Medicine, which

includes consuming a 100% plant-based diet according

to the Bible instruction in Genesis 1:29 along with

practicing the nine (9) lifestyle interventions also

prescribed by the Bible, namely exercise, water,

outdoor fresh air, cleanliness or hygiene to name a

few.

Id. ¶ 138. The complaint provides no specifics concerning other

plaintiffs’ religious or philosophical objections.

Plaintiffs allege that the vaccine mandate violated

their federal constitutional and statutory rights, as well as

New York state law. FAC ¶ 1. They bring claims under (1) the

Occupational Safety and Health Act of 1970, 29 U.S.C. §

660(11)(c); (2) the First Amendment’s Free Exercise Clause and

the Fourteenth Amendment’s guaranty of substantive due process;

(3) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§

2000e et seq.; (4) the New York City Human Rights Law,

Administrative code § 8-107(3), § 8-109(a)(f)(i); and (5) New

York’s common law of fraud. They seek declaratory and

injunctive relief, as well as monetary damages. FAC ¶ 1.

On September 6, 2022, I denied plaintiffs’ motion for

a temporary restraining order because they had not established a

sufficient likelihood of success on the merits. See Mot. for

TRO & PI, ECF No. 17; Dkt. Order, Sept. 6, 2022. I denied a

related application for injunctive relief on September 14, 2022.

See Mot. for Reconsideration of TRO, ECF No. 20; Dkt. Order,

Sept. 14, 2022. Following this denial, plaintiffs filed a Third

Amended Complaint on September 15, 2022. See Third Am. Compl.,

ECF No. 22. Based on that new complaint, plaintiffs again filed

for emergency relief on October 26, 2022, and moved to

supplement their request for relief on November 16, 2022. Mot.

for TRO, PI, & Conditional Class Certification, ECF No. 33; Mot.

to Amend/Correct/Supplement, ECF No. 38. Again, I found that

plaintiffs were unlikely to succeed on the merits of their

claims. See e.g., Mem. & Order, ECF No. 37; Mem. & Order, ECF

No. 39.

Defendants initiated the instant Motion to Dismiss in

2023. See Mot. to Dismiss, ECF No. 47. Plaintiffs’ several

submissions thereafter, together with the failure to follow the

Court’s rules, elongated the briefing process. See e.g., Mot.

for Summary Judgment, ECF No. 57; Mot. to

Amend/Correct/Supplement Fourth Am. Compl., ECF No. 63; Mot. for

Sanctions, ECF No. 64; Dkt. Order, Apr. 4, 2023.

On January 10, 2024, I granted plaintiffs leave to

amend their complaint once again. Dkt. Order, Jan. 10, 2024.

Plaintiffs filed their Fourth Amended Complaint on January 22,

2024 – the operative complaint here. See FAC. Consistent with

my January 10, 2024 Order, defendants renewed their Motion to

Dismiss on February 1, 2024. See Renewed Mot. to Dismiss, ECF

No. 90; see also Opp’n to Renewed Mot. to Dismiss, ECF No. 91;

Reply Supp. Renewed Mot. to Dismiss, ECF No. 95.

The Court acknowledges the following deficiencies in

the Fourth Amended Complaint, as well as the inability of

certain plaintiffs to bring suit. However, the Court need not

wade into these deficiencies in greater detail due to the

complete dismissal of the action, save for two claims brought by

one plaintiff.

First, this case was initially brought by an

association called “Women of Color for Equal Justice.” That

organization was dropped from the Fourth Amended Complaint after

questions of standing emerged. Of the plaintiffs who remain,

thirty-five assert no specific facts in support of their claims.

Renewed Mot. to Dismiss at 2-3. Several plaintiffs are listed

on ECF in the caption but not referenced in the body of the

Fourth Amended Complaint at all, or vice-versa. Id at 2.

Second, the plaintiffs bring claims against the

“Department of Children’s Services,” though no City agency bears

that name. Id. This is presumably a reference to the

Administration for Children’s Services; that entity is not,

however, subject to suit under the New York City charter. E.g.,

Thomas v. Admin. for Children’s Servs., No. 21-CV-0047, 2021 WL

493425, at *2 (E.D.N.Y. Feb. 10, 2021).

Third, at least some plaintiffs in this case are or

were also plaintiffs in other actions regarding the vaccine

mandate, giving rise to the specter of claim-splitting. See Am.

Stock Exch., LLC v. Mopex, Inc., 215 F.R.D. 87, 91 (S.D.N.Y.

2002) (“It is well established, under the doctrine of ‘claim

splitting,’ that a party cannot avoid the effects of res

judicata by splitting her cause of action into separate grounds

of recovery and then raising the separate grounds in successive

lawsuits.”); Mem. in Supp. Mot. to Dismiss at 6-7, ECF No. 48.

Lastly, three plaintiffs — Curtis Boyce, Ayse Ustares,

and Sarah Wiesel — waived their claims against the Department of

Education in exchange for health benefits through September 6,

2022. See Renewed Mot. to Dismiss, Ex. A; Ex. B; Ex. C, ECF

Nos. 90-1, 90-2, 90-3. The New York County Supreme Court

recently upheld and enforced an identical waiver to those

executed by these plaintiffs. See Sullivan v. Bd. of Educ. of

the City Sch. Dist. of the City of N.Y., 2023 N.Y. Misc. LEXIS

2468 (N.Y. Sup. Ct. 2023). Plaintiff Carla Grant executed a

similar waiver with the Department of Transportation in exchange

for health benefits through June 30, 2022. See Renewed Mot. to

Dismiss, Ex. D; ECF No. 90-4. These plaintiffs’ claims are thus

also barred by res judicata.

These issues notwithstanding, the case is dismissed in

its entirety, with the exception of two claims brought by Amoura

Bryan, for the reasons that follow.

Standard of Review

To overcome a motion to dismiss under Rule 12(b)(6), a

complaint must plead facts sufficient “to state a claim to

relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007).7 A claim is facially

plausible “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

On a motion to dismiss, the district court must accept

all factual allegations in the complaint as true and draw all

reasonable inferences in the plaintiffs’ favor. See Lundy v.

Catholic Health Sys. Of Long Island Inc., 711 F.3d 106, 113 (2d

Cir. 2013). However, the Court need not construe legal

7 Unless otherwise noted, when quoting judicial decisions this order

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

quotation marks.

conclusions dressed as facts in favor of the plaintiffs. See

Iqbal, 556 U.S. at 663 (“[T]he tenet that a court must accept a

complaint’s allegations as true is inapplicable to threadbare

recitals of a cause of action’s elements, supported by mere

conclusory statements.”).

Additionally, district courts must police their own

subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“if

the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”); Lyndonville

Savings Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir.

2000) (“[F]ailure of subject matter jurisdiction is not waivable

and may be raised at any time by a party or by the court sua

sponte.”).

Discussion

A. Occupational Safety and Health Act

In their first cause of action, plaintiffs assert that

the City’s policy of conditioning employment on vaccination

violated their rights under the Occupational Safety and Health

Act (“OSHA”). FAC ¶¶ 177-94. Plaintiffs cite the “right” —

ostensibly emanating from Section 20(a)(5) of OSHA — to be free

from discrimination for “refus[ing] any medical examination,

medical treatment, or immunization/vaccine.” Id. at ¶ 178; see

29 U.S.C. § 669(a)(5). The plaintiffs assert a claim directly

under this Section, see, e.g., id. ¶¶ 183-85; alternatively,

they contend that even if OSHA establishes no private right of

action, this claim may be brought pursuant to 42 U.S.C. § 1983.

See id. ¶¶ 189-190, 193-94.

The Court need not reach the merits of plaintiffs’

OSHA claim. There is no private right of action under OSHA, and

the claim may not be brought under Section 1983.

“Under OSHA, employees do not have a private right of

action.” Donovan v. Occupational Safety & Health Rev. Comm’n,

713 F.2d 918, 926 (2d Cir. 1983). On the contrary, “it is

apparent from [OSHA’s] detailed statutory scheme that the public

rights created by the Act are to be protected by the Secretary

and that enforcement of the Act is the sole responsibility of

the Secretary.” Id. at 927. Several recent cases in this

circuit have applied this conclusion in virtually identical

circumstances, barring private plaintiffs from bringing COVID-

19-related claims under OSHA. See, e.g., Vasquez v. City of New

York, No. 22-CV-05068, 2024 WL 1348702, *11 (E.D.N.Y. Mar. 30,

2024), reconsideration denied, No. 22-CV-05068, 2024 WL 1886656

(E.D.N.Y. Apr. 30, 2024); Quirk v. DiFiore, 582 F. Supp. 3d 109,

115-16 (S.D.N.Y. 2022).

Plaintiffs argue that even in the absence of a private

right of action under OSHA, 42 U.S.C. § 1983 provides the

vehicle for a Section 20(a)(5) claim. See ¶¶ 189-190, 193-94.

This is not correct. To seek redress through Section 1983, “a

plaintiff must assert the violation of a federal right, not

merely a violation of federal law. Blessing v. Freestone, 520

U.S. 329, 340 (1997). And even when a plaintiff can point to an

individually enforceable right, and locate herself within the

class of intended beneficiaries, a Section 1983 claim will still

be dismissed if such an action “would be inconsistent with

Congress’[s] carefully tailored [remedial] scheme.” Golden

State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107

(1989). That will be the case where, for example, Congress has

created “a comprehensive enforcement scheme that is incompatible

with individual § 1983 enforcement.” Blessing, 520 U.S. at 330;

see City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121

(2005) (“The express provision of one method of enforcing a

substantive rule suggests that Congress intended to preclude

others.”).

In the case of OSHA, “it is apparent from the detailed

statutory scheme that the public rights created by the Act are

to be protected by the Secretary” of Labor, “and that

enforcement of the Act is the sole responsibility of the

Secretary.” Donovan, 713 F.2d at 927; see also Jacobsen v. N.Y.

City Health & Hosps. Corp., No. 12 Civ. 7460, 2013 WL 4565037,

at *7 (S.D.N.Y. Aug. 28, 2013) (collecting cases noting the

same). Given this detailed scheme — as well as the Second

Circuit’s directive to read enforcement as reserved to the

Secretary — it is clear that allowing OSHA enforcement under

Section 1983 would be “incompatible” with Congress’s dictates.

Blessing, 520 U.S. at 341. Thus, plaintiffs may not prosecute

their OSHA claim under Section 1983.

B. Constitutional Claims

Plaintiffs allege constitutional claims under both the

First Amendment’s Free Exercise Clause and under a Fourteenth

Amendment substantive due process theory. See FAC ¶¶ 195-226.

They seek remedies through 42 U.S.C. § 1983. Id. ¶ 196.

However, plaintiffs have failed adequately to allege the

necessary elements of a Section 1983 claim.

1. First Amendment: Free-Exercise Claim

Plaintiffs allege that the vaccine mandate

unconstitutionally impinges on the free exercise of their

religion. This argument has already been rejected by the Second

Circuit, which held that a vaccine mandate covering certain New

York State employees did not violate the Free Exercise Clause

because the mandate was a neutral law of general applicability.

See We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 290 (2d

Cir. 2021), opinion clarified, 17 F.4th 368 (2d Cir. 2021).

The First Amendment dictates that “Congress shall make

no law . . . prohibiting the free exercise [of religion].” U.S.

Const. amend I; see Cantwell v. Connecticut, 310 U.S. 296, 303

(1940) (incorporating the Clause against the states). To state

a Free Exercise Claim, a plaintiff must, as a threshold matter,

allege a “sincerely held” religious belief. See Fifth Ave.

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

Cir. 2002). Having done so, they must then plausibly allege

that “the object of [the challenged] law is to infringe upon or

restrict practices because of their religious motivation,” or

that the law’s “purpose . . . is the suppression of religion or

religious conduct.” Okwedy v. Molinari, 69 F. App’x. 482, 484

(2d Cir. 2003).

As noted above, only one plaintiff has made even the

faintest effort to describe the religious beliefs at issue with

any specificity at all.8 In that regard, the claims here are

even weaker than those rejected in We The Patriots. Cf. We The

Patriots, 17 F.4th at 272 (plaintiffs contended that vaccination

“would violate their religious beliefs because those vaccines

were developed or produced using cell lines derived from cells

obtained from voluntarily aborted fetuses.”). In making this

observation, this Court need not — and does not — engage in

sincerity analysis. That process is constitutionally fraught.9

8 Apart from the one plaintiff described as following the “biblical

practice of plant-based lifestyle medicine,” FAC ¶¶ 138-42, 203, plaintiffs

do not enumerate their specific religious objections to the vaccine mandate.

Plaintiffs instead refer generally to their “religious practice of abstaining

from the COVID-19 [vaccine].” FAC ¶ 159.

9 “In a country with the religious diversity of the United States,

judges cannot be expected to have a complete understanding and appreciation

of the role played by every person who performs a particular role in every

religious tradition.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591

It is also, however, inherently fact-intensive; as such it

cannot even be attempted where, as here, plaintiffs have pled

virtually nothing about the beliefs at issue.10

More importantly, the plaintiffs have not alleged that

the mandates targeted religion or treated religious belief less

generously than lay practice. Under existing precedent, a law

does not violate the Free Exercise Clause if it is generally

applicable, the government can articulate a rational basis for

enforcement, and any burden upon religion is incidental rather

than purposeful. See Emp. Div., Dep’t of Hum. Res. of Or. v.

Smith, 494 U.S. 872, 879 (1990); Emilee Carpenter, LLC v. James,

107 F.4th 92, 109 (2d Cir. 2024). At the same time, laws that

treat religious belief less favorably than other conduct are not

generally applicable (or, said differently, they are not

“neutral” towards religion). Roman Catholic Diocese of Brooklyn

v. Cuomo, 592 U.S. 14, 18 (2020) (per curiam); see Okwedy, 69 F.

App’x. at 484.

It was against this legal landscape that the Second

Circuit rejected the Free Exercise Clause challenge to the

State’s vaccine mandate in We The Patriots, 17 F.4th at 290,

U.S. 732, 757 (2020); see also Presbyterian Church in the U.S. v. Mary

Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 451 (1969)

(civil courts should not resolve questions that would require them “to engage

in the forbidden process of interpreting and weighing church doctrine”).

10 We return to this issue in the analysis of plaintiffs’ Title VII

religious-discrimination claims. See Section III.C below.

which post-dated Roman Catholic Diocese. There, the Court of

Appeals held that the vaccine mandate was facially neutral

because a) “the evidence before the district courts failed to

raise an inference that the regulation was intended to be a

covert suppression of particular religious beliefs,” and b)

certain comments made by Governor Kathy Hochul were not

reasonably understood to reveal that the vaccine mandate was

targeted at individuals with religious opposition to required

vaccination. Id. at 282-284. Additionally, the Court held that

despite medical exceptions to the mandate, the law was generally

applicable because “[c]omparability is concerned with the risks

various activities pose,” and medical exemptions are far

narrower and more connected to a compelling government interest

in health promotion than religious exemptions. Id. at 285-288.11

That holding binds this Court.

This case bears no material distinction from We The

Patriots and other cases previously decided in this Circuit.

Plaintiffs have failed to state a violation of the Free Exercise

clause.

2. Substantive Due Process

11 See also Kane v. de Blasio, 623 F. Supp. 3d 339, 356-58 (S.D.N.Y.

2022) (vaccine mandate for City employees was neutral and generally

applicable, and DOE articulated a rational basis for the policy); Rizzo v.

NYC Dep’t of Sanitation, No. 23-CV-7190, 2024 WL 3274455, at *5 (S.D.N.Y.

July 2, 2024) (collecting cases rejecting Free Exercise challenges to City

employee vaccine policies).

The due process clause has been held to have a

“substantive” component, guaranteeing some unenumerated rights.

The first step in evaluating a substantive due process claim “is

to identify the constitutional right at stake.” Kaluczky v.

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

Plaintiffs invoke “the inherent right of every freeman to care

for his own body and health in such way as to him seems best”

and, on that basis, to decline unwanted medical treatment. FAC

¶ 199-202 (citing Jacobson v. Massachusetts, 197 U.S. 11, 26

(1905)).

To succeed, the plaintiffs must establish that the

right they claim is “deeply rooted in this Nation’s history and

tradition” and “implicit in the concept of ordered liberty.”

Washington v. Glucksberg, 521 U.S. 702, 721 (1997). They have

not clearly attempted to do so, and any such effort would not

succeed. The Supreme Court and Second Circuit have

“consistently recognized that the Constitution embodies no

fundamental right that in and of itself would render vaccine

requirements imposed in the public interest, in the face of a

public health emergency, unconstitutional.” We The Patriots, 17

F.4th at 293. Indeed, Jacobson, which plaintiffs cite for the

right to decline medical treatment, held that “urgent public

health needs of the community can outweigh the rights of an

individual to refuse vaccination.” Id. at 293 n.35 (explaining

why Jacobson remains binding). On this basis, a neighboring

district court held that New York’s vaccine mandate implicated

no fundamental right, and that no substantive due process

violation had been visited upon City employees. See Kane, 623

F. Supp. 3d at 360-61. The reasoning in that case applies with

equal force here.

Because plaintiffs have not articulated a fundamental

constitutional right, they fail to state a substantive due

process claim upon which relief may be granted.

C. Title VII

Plaintiffs’ claim of religious discrimination under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq., is similarly without merit, for all plaintiffs but one.

Plaintiffs allege that the City “violated Title VII by

placing Plaintiffs on indeterminate [leave without pay] for

exercising their right to refuse to submit to the Vaccine

orders. . . .” See FAC ¶ 233. To establish a prima facie case

of religious discrimination under Title VII, a plaintiff must

allege that that (1) she held a “bona fide religious belief

conflicting with an employment requirement"; (2) she informed

her employer of this belief; and (3) she was “disciplined for

failure to comply with the conflicting employment requirement.”

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

2001). The Second Circuit has explained that “the evidence

necessary to satisfy this initial burden [i]s minimal . . . .”

Zimmermann v. Asscs. First Cap. Corp., 251 F.3d 376, 381 (2d

Cir. 2001). However, at the motion to dismiss stage, a

plaintiff “must at a minimum assert nonconclusory factual matter

sufficient to nudge its claims’ across the line from conceivable

to plausible to proceed.” E.E.O.C. v. Port Auth. of NY & NJ,

768 F.3d 247, 254 (2d Cir. 2014). Individual defendants may not

be held liable under Title VII. Lore v. City of Syracuse, 670

F.3d 127, 169 (2d Cir. 2012).

To identify a bona fide religious belief, courts

assess “whether the beliefs professed by a claimant are

sincerely held and whether they are, in his own scheme of

things, religious.” Patrick v. LeFevre, 745 F.2d 153, 157 (2d

Cir. 1984) (citing United States v. Seeger, 380 U.S. 163, 185

(1965). “Sincerity analysis is exceedingly amorphous, requiring

the factfinder to delve into the claimant’s most veiled

motivations and vigilantly separate the issue of sincerity from

the factfinder’s perception of the religious nature of the

claimant’s beliefs. This need to dissever is most acute where

unorthodox beliefs are implicated.” Id. To determine whether a

plaintiff’s belief is “religious,” courts must analyze whether

the plaintiff’s professed beliefs implicate “ultimate

concern[s].” Int'l Soc. For Krishna Consciousness, Inc. v.

Barber, 650 F.2d 430, 440 (2d Cir. 1981). A concern is

“ultimate” when “a believer would categorically disregard

elementary self-interest in preference to transgressing its

tenets.” Id.

If a plaintiff satisfies her burden to allege a prima

facie case of religious discrimination, the burden shifts to the

employer “to show that it cannot reasonably accommodate the

plaintiff without undue hardship on the conduct of the

employer’s business.” Philbrook v. Ansonia Bd. of Educ., 757

F.2d 476, 481 (2d Cir. 1985), aff’d and remanded, 479 U.S. 60

(1986). An accommodation is an undue burden when it is

“substantial in the overall context of an employer’s business.”

Groff v. DeJoy, 600 U.S. 447, 468 (2023). This, too, is a

“fact-specific inquiry,” which requires the Court to analyze

“all relevant factors in the case at hand, including the

particular accommodations at issue and their practical impact in

light of the nature, size, and operating cost of an employer.”

Id. at 468, 470-71.

One plaintiff, Amoura Bryan, has cleared the

(relatively low) hurdle to allege a prima facie case.12 Ms.

Bryan subscribes to the “religious Biblical medical practice of

Plant-Based Lifestyle Medicine, which includes consuming a 100%

12 Ms. Bryan did not attach a right-to-sue letter to the complaint. See

Pl.’s Ex. 2, ECF No. 88-2. However, exhaustion of administrative remedies is

not a pleading requirement, as “the burden of pleading and proving Title VII

exhaustion lies with defendants and operates as an affirmative defense.”

Hardaway v. Hartford Public Works Dep’t, 879 F.3d 486, 491 (2018).

plant-based diet according to the Bible instruction in Genesis

1:29 along with practicing the nine (9) lifestyle interventions

also prescribed by the Bible, namely exercise, water, outdoor

fresh air, cleanliness or hygiene to name a few.” FAC ¶ 138.

She alleges that receiving the COVID-19 vaccination is

inconsistent with this belief because she hoped to rely upon

biblical medical practices for protection from COVID-19. See

id. ¶¶ 139-142. Additionally, Ms. Bryan pleads that “for

exercising her religious practice” — that is, for declining to

be vaccinated — she was placed on leave without pay. Id. ¶ 142.

These allegations, while highly general, are sufficient at this

stage. And the assessment of whether the City could have

reasonably accommodated Ms. Bryan without undue hardship is a

fact-intensive assessment that cannot be determined from within

the four corners of the complaint. See Groff, 600 U.S. at 468.

Therefore, Ms. Bryan’s Title VII claim may proceed,

but only against certain municipal defendants: the City and the

Department of Education (because, as noted above, individuals

may not be liable under Title VII). Lore, 670 F.3d 169. The

third municipal defendant, the Department of Health and Mental

Hygiene, is not Ms. Bryan’s employer. FAC ¶ 138.

For all other plaintiffs, the Fourth Amended Complaint

does not allow the reader to divine a bona fide belief — even at

the highest levels of generality. See Cagle v. Weill Cornell

Medicine, 680 F. Supp. 3d 428, 435-36 (S.D.N.Y. 2023) (plaintiff

failed to allege bona fide belief, where complaint alleged only

that she had “religious beliefs” and that those beliefs included

“religious practices of non-vaccination”); Friend v. AstraZeneca

Pharms. LP, 2023 WL 3390820, at *3 (D. Md. May 11, 2023) (“While

Plaintiff’s complaint asserts that he ‘had bona fide religious

beliefs that conflicted with AstraZeneca’s COVID-19 vaccine

mandate,’ it alleges no facts to allow this Court to assess what

Plaintiff’s religious beliefs are and how they conflict.”);

McKinley v. Princeton Univ., No. 22-CV-5069, 2023 WL 3168026, at

*2 (D.N.J. Apr. 28, 2023) (“Without Plaintiff providing facts

showing what sincerely held religious belief she holds that

prevented her from complying with COVID-19 Policies, Plaintiff

fails to adequately allege a cognizable claim for religious

discrimination.”). As described above, plaintiffs claim

religious objections to the COVID-19 vaccine. FAC ¶ 1. Yet

they provide no supporting facts, which prevents the Court from

analyzing whether these beliefs are sincerely held or implicate

ultimate concerns. See, e.g., id. ¶¶ 16-18, 20-36.

In addition, there are portions of the complaint that

invoke non-religious motivations for the plaintiffs’ vaccine

refusal. For example, in a single sentence that runs almost two

pages, the plaintiffs refer to having exercised their

“fundamental right” to refuse vaccination “on religious and non-

religious grounds.” Id. ¶ 1; see also id. ¶ 36 (referring to

requests for “religious and / or medical exemptions”). Absent

any detail about plaintiffs’ religious beliefs, the plaintiffs

cannot claim that they are bona fide.

D. New York City Human Rights Law

Plaintiffs also allege religious discrimination under

the New York City Human Rights Law (“NYCHRL”). The NYCHRL

prohibits discrimination based on the actual or perceived

“creed” or religion of any person. N.Y.C. Admin. Code § 8–

107(1)(a). A NYCHRL claim must be construed “more liberally

than its State and federal counterparts,” in favor of

plaintiffs, “to the extent that such a construction is

reasonably possible.” Makinen v. City of New York, 857 F.3d

491, 495 (2d Cir. 2017); Loeffler v. Staten Island Univ. Hosp.,

582 F.3d 268, 278–79 (2d Cir. 2009).

1. Plaintiff Bryan Has Alleged a Prima Facie Case of

Religious Discrimination Under the NYCHRL

Like Title VII, the City’s Human Rights Law requires a

plaintiff to allege a bona fide religious belief to make out a

prima facie case of discrimination. Specifically, under the

NYCHRL, a plaintiff must demonstrate that “(1) they held a bona

fide religious belief conflicting with an employment

requirement; (2) they informed their employers of this belief;

and (3) they were disciplined for failure to comply with the

conflicting employment requirement.” Weber v. City of New York,

973 F. Supp. 2d 227, 263 (E.D.N.Y. 2013) (collecting cases).

Ms. Bryan is the only plaintiff who articulates a

prima facie NYCHRL religious-discrimination claim. She (a)

articulates a bona fide belief in the “biblical practice” of

plant-based medicine; (b) pleads that she told her employers

about this belief; and (c) alleges retaliation for refusal to

receive vaccination. FAC ¶¶ 138-142. These claims meet the

threshold for Ms. Bryan to proceed under the NYCHRL at this

stage. No other plaintiffs, however, approach even this low

pleading bar. See Lugo v. City of New York, 518 F. App’x 28, 30

(2d Cir. 2013) (“While the NYCHRL is indeed reviewed

independently from and more liberally than federal or state

discrimination claims, it still requires a showing of some

evidence from which discrimination can be inferred.”); Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981).

At the next step of NYCHRL analysis, the burden shifts

to the employer “to rebut the presumption of discrimination by

clearly setting forth, through the introduction of admissible

evidence, legitimate, independent, and nondiscriminatory reasons

to support its employment decision.” Forrest v. Jewish Guild

for the Blind, 3 N.Y.3d 295, 305 (N.Y. 2004). Here, defendants

cannot carry that burden. At the motion to dismiss stage, the

Court may only consider the facts in the FAC, which pleads that

plaintiff’s religion was not accommodated. See FAC ¶¶ 138-42;

Davis v. Boeheim, 24 N.Y.3d 262, 268 (N.Y. 2014). Thus, Ms.

Bryan’s NYCHRL claim may proceed.

2. Bryan’s NYCHRL Claim May Proceed Against Certain

Municipal Defendants

Under the NYCHRL, an employer like New York City is

liable for the conduct of its employee or agent “only where”:

(1) “the employee or agent exercised managerial or supervisory

responsibility;” (2) “the employer knew of [an] employee’s or

agent’s discriminatory conduct, and acquiesced in such conduct

or failed to take immediate and appropriate corrective action .

. .”; or (3) the employer “should have known of the employee’s

or agent’s discriminatory conduct and failed to exercise

reasonable diligence to prevent [it].” N.Y.C. Admin. Code § 8-

107(13)(b).

Here, the third factor is easily satisfied at this

stage: the City cannot (and does not) contend that it lacked

knowledge of the vaccine mandate, the absence of a religious

exemption therefrom, or the consequences of non-compliance.

Thus, Ms. Bryan’s NYCHRL claim is proper against the City of New

York and the Department of Education. As noted above, however,

the Department of Health and Mental Hygiene is not Ms. Bryan’s

employer. FAC ¶ 138.

3. Bryan’s NYCHRL Claims Against the Individual

Defendants Are Dismissed

Unlike Title VII claims, NYCHRL claims may be brought

against individual defendants. See McLeod v. Jewish Guild for

the Blind, 864 F.3d 154, 157 (2d Cir. 2017). In addition,

supervisory liability for individual defendants is available

under the statute — though not based on the supervisor’s

position alone. See Marchuk v. Faruqi & Faruqi, LLP, 100 F.

Supp. 3d 302, 308 (2015).

To establish liability against a supervisor, a

plaintiff must “prove at least some minimal culpability on the

part of” that individual. Id. at 309. So, for example, the

district court dismissed a NYCHRL claim against former New York

State Attorney General Eric Schneiderman and another State

executive where the plaintiff had “fail[ed] to allege any facts

which could tend to show that either defendant was ever aware of

[plaintiff’s] allegations of discrimination or otherwise

participated in discriminatory conduct.” Morgan v. N.Y. Atty.

Gen.’s Office, 11-CV-9389, 2013 WL 491525, at *13 (S.D.N.Y. Feb.

8, 2013).

Applying this standard, the individual defendants must

be dismissed on this claim. 13 There are no allegations in the

13 The individual defendants are Mayor Eric Adams, former Mayor Bill de

Blasio, NYC Department of Health and Mental Hygiene Commissioner Ashwin

Vasan, former Health and Mental Hygiene Commissioner Dave Chokshi, and “Does

1-20,” about whom no details are pled in support of the discrimination

claims. FAC ¶¶ 40-41, 43-44. The Does are referenced on the face of the

complaint that any individual defendant personally participated

in the employment decisions at issue or bears any individual

“culpability” for Ms. Bryan’s termination. Marchuk, 100 F.

Supp. 3d at 309. For instance, the complaint does not allege

that Mayor de Blasio had any personal role in crafting the

employment consequences for vaccine refusal, the contours of any

exemptions or accommodations, or the application of those

policies to any person. See Morgan, 2013 WL 491525, at *13; see

generally FAC. Ms. Bryan’s NYCHRL claim will therefore proceed

only against the City and the Department of Education.

E. Federal Declaratory Judgment Act

Plaintiffs attempt to bring a cause of action under

the Federal Declaratory Judgment Act, seeking declaratory and

injunctive relief. See 28 U.S.C. § 2201; FAC ¶¶ 234-54.

District courts have discretion to determine whether and when to

entertain declaratory judgment actions. See Wilton v. Seven

Falls Co., 515 U.S. 277, 282 (1995). This court denied

plaintiffs’ request to amend their complaint to include claims

for declaratory and injunctive relief under 28 U.S.C. §§ 2201-

02, see Women of Color for Equal Just. v. City of N.Y., 2022 WL

17083109, at *4 (E.D.N.Y. Nov. 18, 2022), and those rulings

complaint but never again in the document. See generally id. Mayor Adams

and Commissioner Vasan are sued in their official capacities, while former

Mayor DeBlasio and former Commissioner Chokshi are sued in their personal

capacities. FAC ¶¶ 40-41, 43-44.

remain the law of the case. See Musacchio v. United States, 577

U.S. 237, 244-45 (2016) (“[W]hen a court decides upon a rule of

law, that decision should continue to govern the same issues in

subsequent stages in the same case.”). Thus, the Court declines

to entertain a declaratory judgment action here, either.

F. Common Law Fraud

Finally, Plaintiffs allege that all defendants are

liable for common-law fraud. Plaintiffs allege a handful of

false statements and omissions made by New York City’s Health

Commissioner, Dave A. Chokshi, in the Vaccine Orders. For

example, plaintiffs claim that Dr. Chokshi

falsely represented in the Vaccine Orders 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’ when

it is impossible for any vaccine to shield any person

from exposure or prevent anyone from coming into

contact with any hazardous airborne communicable

disease in the workplace atmosphere.

FAC ¶ 275. No plaintiff has established standing to bring this

claim.

In federal court, plaintiffs are obligated to

“demonstrate standing for each claim that they press and for

each form of relief that they seek.” TransUnion LLC v. Ramirez,

594 U.S. 413, 431 (2021). In other words, standing must be

alleged on a claim-by-claim basis. See Friends of the Earth,

Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S.

167, 180-81 (2000).

There are three familiar elements of Article III

standing. First, a plaintiff must have suffered an “injury in

fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992). “To establish injury in fact, a plaintiff must show

that he or she suffered “an invasion of a legally protected

interest” that is “concrete and particularized” and “actual or

imminent, not conjectural or hypothetical.” Spokeo, Inc. v.

Robins, 578 U.S. 330, 339 (2016), as revised (May 24, 2016).

Particularized means that it “affect[s] the plaintiff in a

personal and individual way.” Id.

Second, “the injury has to be fairly traceable to the

challenged action of the defendant.” Lujan, 504 U.S. at 560.

“Fairly traceable” means that “there must be a causal connection

between the injury and the conduct complained of.” Dep’t of Ed.

v. Brown, 600 U.S. 551, 561 (2023) (discussing Lujan). To prove

causation, “the plaintiff must show a predictable chain of

events leading from the government action to the asserted injury

— in other words, that the government action has caused or

likely will cause injury in fact to the plaintiff.” Food & Drug

Admin. v. All. for Hippocratic Med., 602 U.S. 367, 385 (2024).

Finally, it must be “likely” rather than “speculative”

that the injury will be “redressed by a favorable decision.”

Lujan, 504 U.S. at 561.

The FAC describes three classes of plaintiffs: (1) the

“locked out class” of City employees who refused vaccination;

(2) the “coerced class” who received COVID-19 vaccines “so that

they could get their jobs and salary back”; and (3) “City

employees who relied on the City’s material misrepresentation

that the Covid-19 vaccine ‘is an effective tool to prevent the

spread of Covid-19’ (See Vaccine Orders) and submitted to the

administrative injection of the Covid-19 into their bodies and

thereafter experienced one or more Covid-19 infections that

resulted in physical, and/or psychological injury . . . .” Id.

¶ 11(a)-(c).

The third class refers to a fraud-induced injury. The

problem for the plaintiffs is that, while the FAC describes this

class, no individual plaintiff alleges any injury traceable to

the City’s alleged misrepresentations. FAC ¶¶ 11-38 (describing

the plaintiffs). Allegations that “thousands of people” were

harmed is insufficient to state a particularized injury that any

individual plaintiff was harmed. Id. ¶ 282; see Spokeo, 578

U.S. at 339 (2016). Indeed, it is axiomatic that “a citizen

does not have standing to challenge a government regulation

simply because the plaintiff believes that the government is

acting illegally.” All. for Hippocratic Med., 602 U.S. at 381.

A detailed, plaintiff-by-plaintiff assessment reveals

that no plaintiff claims that he or she got vaccinated in

reliance on the alleged misrepresentations at issue — or any

other facts that could plausibly be construed as a basis for

membership in the “misrepresentation class.” Thus, no

individual plaintiff has standing for plaintiffs’ fraud claim.

Most plaintiffs refused COVID-19 vaccination and

therefore could not be injured by reliance on allegedly false

statements about the vaccine’s effectiveness. FAC ¶ 12-36

(detailing that sixty out of the sixty-five named plaintiffs

refused vaccination).14 Three plaintiffs do not allege whether

or not they were vaccinated and therefore similarly cannot state

a particularized injury relating to the alleged misstatements.

The complaint describes the remaining two plaintiffs

as belonging to the “coerced class” — those who received COVID-

19 vaccines based on the threat of adverse employment

consequences. Id. ¶¶ 11(b), 37-38. Only one of the two, Jesus

Coombs, alleges that he was infected with COVID-19 following

vaccination. Id. ¶ 38. Mr. Coombs pleads that he “took the

14 The Court counts sixty-five named plaintiffs, assuming that a)

plaintiffs whose names are spelled in different ways are the same person; and

b) plaintiffs whose names are listed twice are only one person, rather than

two people with the same name. See generally FAC; Docket No. 22-CV-2234.

Covid-19 vaccine and thereafter sustained a Covid-19 infection

and health problems.” Id.; see also id. ¶ 169. His allegation

that he experienced health problems following vaccination states

a concrete injury. Spokeo, 578 U.S. at 339. But, Mr. Coombs’s

injury is not “fairly traceable” to the fraud claim. Lujan, 504

U.S. at 560-61. The FAC pleads that:

On January 13, 2022, Mr. Coombs was placed on leave

without play for refusing to submit to the Vaccine

Orders. He was scheduled to be terminated, but

because he is the sole income earner in his home, he

with much gilt, anxiety and distress, submitted to the

Vaccine Order and returned to work on February 15,

2022.

FAC ¶ 38. This passage suggests no reliance on — or even

awareness of — the Health Commissioner’s allegedly false

statements. Id. Put differently, Mr. Coombs does not allege a

causal link between any allegedly fraudulent statement and his

injury. See All. for Hippocratic Med., 602 U.S. at 385.

Therefore, Mr. Coombs, too, lacks standing to bring a fraud

claim. Because no plaintiff has standing to bring this claim,

it is dismissed for lack of jurisdiction.15

Conclusion

With the exception of Ms. Bryan’s Title VII and NYCHRL

claims against the City and the Department of Education,

15 This claim is also likely untimely, based on plaintiffs’ failure to

file a notice of claim with the City. See N.Y. Gen. Mun. Law 50-e (requiring

that a plaintiff must file a notice of claim prior to commencement of an

action against a municipality and must serve the notice of claim within

ninety (90) days after the claim arises).

plaintiffs’ claims are dismissed. Plaintiffs’ fraud claim is

dismissed without prejudice. See Katz v. Donna Karan Co.,

L.L.C., 872 F.3d 114, 116 (2d Cir. 2017) (dismissal for lack of

subject matter jurisdiction must be without prejudice). All

other claims are dismissed with prejudice. See, e.g., Liang v.

Home Reno Concepts, LLC, 803 F. App’x 444, 448 (2d Cir. 2020)

(denying leave to amend was proper where plaintiff already had

“three bites at the apple” and was still unable to state a

claim); Foman v. Davis, 371 U.S. 178, 182 (1962) (courts may

deny leave to amend based on “futility of amendment”); Wallace

v. Conroy, 945 F. Supp. 628, 639 (S.D.N.Y. 1996) (collecting

cases).

Finally, plaintiffs’ motion for sanctions and motion

to vacate the denial of preliminary injunctive relief are

denied. ECF Nos. 64, 74. The motion to strike the Fourth

Amended Complaint and all other pending motions related to the

Fourth Amended Complaint and the motion to dismiss are denied as

moot. ECF Nos. 75, 82, 83, 87, 96, 98.

A status conference on the remaining claims shall be

held at 10:30 AM on November 7, 2024 in Courtroom 6G North.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United State s District Judge

D ated: September 25, 2024

Brooklyn, New York