Famiglietti v. New York City Department of Sanitation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ROCCO FAMIGLIETTI,

Plaintiff,

MEMORANDUM AND ORDER

-against- 1:23-CV-2754 (LDH) (VMS)

NEW YORK CITY DEPARTMENT OF

SANITATION, CITY OF NEW YORK, ERIC

ADAMS, and DAVID CHOKSHI,

Defendants.

LASHANN DEARCY HALL, United States District Judge:

Plaintiff Rocco Famiglietti (“Plaintiff”) brings the instant action against New York City

Department of Sanitation,1 the City of New York, Eric Adams, and David Chokshi

(“Defendants”) pursuant to 42 U.S.C. § 1983, alleging violations of the Fourteenth Amendment’s

Equal Protection Clause and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

(“Title VII”). Defendants move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss

the complaint in its entirety.

BACKGROUND2

Plaintiff is a former sanitation worker who was employed with the New York City

Department of Sanitation (“DSNY”) from September 14, 2014, until his termination on April 25,

1 Plaintiff concedes that New York City Department of Sanitation (“DSNY”), as a New York City agency, cannot be

sued. (Pl.’s Opp’n., ECF No. 15, at 19); see N.Y. City Charter Ch. 17, § 396 (“[a]ll actions and proceedings for the

recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in

that of any agency, except where otherwise provided by law”); see also Phillip v. Dep’t of Sanitation, No. 16-CV-

2412 (MKB), 2019 WL 1004588, at *5 (E.D.N.Y. Feb. 28, 2019) (dismissing all claims against DSNY in light of

Section 396). Accordingly, Plaintiff’s claims against DSNY are dismissed.

2 The following facts are taken from the complaint and are assumed to be true for the purpose of this memorandum

and order, unless otherwise indicated.

2022. (Compl., ECF No. 1, ¶¶ 1, 9, 113.) On or about, October 20, 2021, Defendant David

Chokshi, former Commissioner of the New York City Department of Health and Mental

Hygiene, issued a COVID-19 vaccine mandate (“the Vaccine Mandate”), ordering that “any City

employee who failed to get vaccinated by October 29, 2021, would . . . be excluded from their

workplace beginning on November 1, 2021.” (Compl. ¶¶ 5, 22–24.) The Vaccine Mandate

permitted workers to request medical and religious accommodations. (Id. ¶ 24.)

On October 27, 2021, Plaintiff, who identifies as Catholic, requested a religious

accommodation. (Id. ¶¶ 72, 77.) In his request, Plaintiff explained that he opposed the Vaccine

Mandate because the vaccine “was produced using human cell lines derived from direct

abortions,” which conflicted with his conscience, guided by the Catechism of the Catholic

Church. (Id. ¶¶ 79, 247.)3 Plaintiff further explained that his conscience represents his direct

connection with Jesus Christ. (Id. ¶ 81.) On November 2, 2021, Julie Cascino, an attorney with

the DSNY Office of Equity, Diversity, and Inclusion, requested supplemental information

regarding Plaintiff’s objection to the consumption of medication produced through the use of

fetal cells. (Id. ¶¶ 83–84.) Ms. Cascino also informed Plaintiff that “[t]he available mRNA

vaccines (Moderna and Pfizer) do not require the use of any fetal cell lines in their production”

and inquired whether Plaintiff declined to take commonly used medicines like ibuprofen that,

unlike the COVID vaccine, “were tested or developed from cells that were derived from fetal cell

lines.” (Id. ¶¶ 85–86.) Ms. Cascino also invited Plaintiff to provide other supplemental

information about his objection to the Vaccine Mandate, including how long Plaintiff had held

his religious beliefs, or how the beliefs impacted Plaintiff’s past medical decisions. (Id. ¶ 87.) In

3 Plaintiff also alleges that getting the vaccine conflicted with his conscience, and that disobeying his conscience is

disobeying Jesus Christ. (Id. ¶ 82.) However, Plaintiff does not clarify whether he conveyed this particular belief in

his request for religious accommodation.

response, on November 4, 2021, Plaintiff reiterated the objections advanced in his original

application, and emphasized that “forced inoculation was contrary to his conscience” and that he

believed the Vaccine Mandate was unethical and unjust. (Id. ¶ 88.) On November 18, 2021,

Plaintiff received a letter from DSNY stating that the information he provided to support his

request did not sufficiently demonstrate a basis to grant his exemption. (Id. ¶ 90.) Accordingly,

Plaintiff was required to comply with the Vaccine Mandate by November 21, 2021. (Id. ¶ 91.)

He did not.

According to the Complaint, other DSNY workers were provided accommodations. (Id.

¶ 93.) Plaintiff also alleges that the Vaccine Mandate only applied to “City Workers,” and that

New York City Mayor Eric Adams did not enforce the Vaccine Mandate against private sector

employees or New York City residents generally. (Id. ¶¶ 102–105.)

In April 2022, but at some point before April 25, 2022, DSNY demoted Plaintiff from

supervisor to sanitation worker. (Id. ¶ 114.) On or about April 25, 2022, Plaintiff was

terminated for failure to comply with the Vaccine Mandate. (Id. ¶ 113.)

STANDARD OF REVIEW

To withstand a Rule 12(b)(6) motion to dismiss, a complaint “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 is facially plausible when the alleged facts allow the court to draw a

“reasonable inference” of a defendant’s liability for the alleged misconduct. Id. While this

standard requires more than a “sheer possibility” of a defendant’s liability, id., “[i]t is not the

Court’s function to weigh the evidence that might be presented at trial” on a motion to dismiss.

Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999). Instead, “the

Court must merely determine whether the complaint itself is legally sufficient, and, in doing so,

it is well settled that the Court must accept the factual allegations of the complaint as true.” Id.

(citations omitted).

DISCUSSION

I. Fourteenth Amendment Equal Protection Claim – Selective Enforcement4

The Equal Protection Clause of the Fourteenth Amendment of the United States

Constitution requires the government to treat all similarly situated people alike. City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To plead a violation of the Equal Protection

Clause based on selective enforcement, a plaintiff must allege: (1) “[that he], compared with

others similarly situated, was selectively treated; and (2) that such selective treatment was based

on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of

constitutional rights, or malicious or bad faith intent to injure a person.” Zahra v. Town of

Southold, 48 F.3d 674, 683 (2d Cir. 1995) (citation omitted). Conclusory allegations of selective

treatment may not survive a motion to dismiss. D.F. ex rel. Finkle v. Bd. of Educ. of Syosset

Cent. Sch. Dist., 386 F. Supp. 2d 119, 128 (E.D.N.Y. 2005), aff’d sub nom. D.F. v. Bd. of Educ.

of Syosset Cent. Sch. Dist., 180 F. App’x 232 (2d Cir. 2006) (citing Albert v. Carovano, 851 F.2d

561, 572, 573–74 (2d Cir. 1988). Indeed, to find that a complaint sufficiently states a claim, a

court must determine that a jury could ultimately determine that the comparators are similarly

situated based on the facts alleged. DePrima v. City of New York Dep’t of Educ., No. 12-CV-

3626 MKB, 2014 WL 1155282, at *5 (E.D.N.Y. Mar. 20, 2014) (citation omitted).

4 Plaintiff concedes his “class of one” Fourteenth Amendment claims. (Pl.’s Opp’n. at 19); see Engquist v. Or.

Dep’t of Agric., 553 U.S. 591, 605 (2008) (holding that “class of one” claims are not available in the context of

public employment); see also Sullivan v. City of Long Beach, No. CV 22-1163 (DG)(AYS), 2023 WL 11872656

(dismissing a “class of one” discrimination claim where the case arose in the context of public employment).

Accordingly, Plaintiff’s “class of one” Fourteenth Amendment claims are dismissed.

Nonetheless, the appropriate inquiry at the motion to dismiss stage is whether “it is

plausible that a jury could ultimately determine that the comparators are similarly situated.”

Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 698 (S.D.N.Y. 2011).

Indeed, even under the less stringent standard, “[w]ell-pled facts showing that the plaintiff has

been treated differently from others similarly situated [are] an essential component of such a

claim [and] [c]onclusory allegations of selective treatment are insufficient to state an equal

protection claim.” Bishop v. Best Buy, Co., No. 08–CV–8427, 2010 WL 4159566, at *11

(S.D.N.Y. Oct. 31, 2010) (citation and internal quotation marks omitted) (dismissing the

plaintiff’s equal protection claim because he failed to allege any similarly situated individuals

who were treated differently).

Defendants argue that Plaintiff’s selective enforcement claim must be dismissed because

Plaintiff fails to allege any similarly situated comparators whom Defendants treated differently.

The Court agrees. Plaintiff only alleges that “he is similarly situated with all human beings

living, gathering, and working in . . . [New York] City” because “the [v]irus infects all human

beings without distinction.” (Compl. ¶¶ 139, 133; see also id. 134, 136 (same).) Such sweeping

references to the millions of people living in New York City are precisely the kinds of conclusory

allegations of selective treatment that the pleading standard proscribes. See Bishop, 2010 WL

4159566, at *11. Because Plaintiff has not pled that he is similarly situated to any person or

specific group, the Court cannot assess whether Defendants treated him differently that they

treated anyone else. Accordingly, Plaintiff’s Equal Protection claim based on selective

enforcement fails as a matter of law.

II. Title VII

A. Religious Discrimination

Title VII makes it an unlawful for an employer to discriminate against an employee

because of his or her religion. Cosme v. Henderson, 287 F.3d 152, 157 (2d Cir. 2002).

Specifically, Title VII’s provisions make it an unlawful to discriminate against any employee

“‘with respect to his compensation, terms, conditions, or privileges of employment, because of

such individual’s . . . religion,’ or to ‘limit, segregate or classify’ an employee in a way that

would ‘adversely affect his status as an employee,’ because of that employee’s ‘religion.’” Id.

(citing 42 U.S.C. § 2000e–2(a)(2), § 703(a)(2)). Title VII thus requires a plaintiff asserting a

discrimination claim to allege two elements: (1) that the employer discriminated against him5

(2) because of his race, color, religion, sex, or national origin. Vega v. Hempstead Union Free

Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (citing 42 U.S.C. § 2000e–2(a)(1)).

Defendants argue that Plaintiff’s discrimination claim is ripe for dismissal because

Plaintiff fails to allege he was terminated because of his religious beliefs. The Court agrees. It is

well-established that an inference of discriminatory motivation can arise from a variety of

circumstances, such as “an employer’s criticism of a plaintiff in degrading terms, invidious

comments about others in the employee’s protected class, more favorable treatment of

employees not in the employee’s protected class,” or the sequence of events leading to the

employee’s discharge. Freckleton v. Ambulnz NY LLC, No. 21-CV-4615 (AMD) (LB), 2022 WL

5 As to the first element, an employer discriminates against a plaintiff by taking an adverse employment action

against him, including termination of employment. Vega, 801 F.3d at 85. Defendants do not challenge that

Plaintiff’s termination constitutes an adverse employment action. (Defs.’ Opp. at 15.) Accordingly, the Court finds

that Plaintiff sufficiently pleads the first element.

4644673, at *4 (E.D.N.Y. Sept. 30, 2022) (citing Littlejohn v. City of New York, 795 F.3d 297,

312 (2d Cir. 2015)).

Plaintiff alleges nothing of the sort. Indeed, Plaintiff does not state a single fact giving

rise to an inference that his religious beliefs were a “substantial” or “motivating” factor

contributing to his termination. See Vega, 801 F.3d at 85. To the contrary, Plaintiff explicitly

states that he was terminated for “not complying with the [COVID-19 Vaccine] Mandate”

(Compl. ¶ 113), which was a condition of employment imposed across the private and public

sector given the public health emergency presented by the coronavirus pandemic. Because

Plaintiff fails to plead that his termination was motivated by discrimination, his Title VII claim

for religious discrimination is dismissed.

B. Failure to Accommodate

To establish a claim for failure to accommodate in violation of Title VII, a Plaintiff must

show that he “(1) held a bona fide religious belief conflicting with an employment requirement;

(2) informed employers of this belief; and (3) was disciplined for failure to comply with the

conflicting employment requirement.” Baker v. Home Depot, 445 F.3d 541, 546 (2d. Cir. 2006).

Once the employee establishes a prima facie case, the employer “must offer [him or her] 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). Defendants argue that

Plaintiff’s failure to accommodate claim should be dismissed because he does not plausibly

allege that his religious beliefs are sincerely held or that they conflict with the Vaccine Mandate.

Not so.

As a threshold matter, the inquiry into the sincerity of a person’s religious belief is a

question of fact generally unsuitable to resolution at the motion to dismiss stage. Gardner-

Alfred, 651 F. Supp. 3d at 721 (citing Patrick, 745 F. 2d at 157). In any event, Plaintiff has

sufficiently alleged sincerely held religious beliefs that conflict with the Vaccine Mandate. The

assessment of whether a person’s belief is religious is two-fold, as the Court must ascertain: (1)

“whether the beliefs professed by a claimant are sincerely held and [2] whether they are, in his

own scheme of things, religious.” Gardner-Alfred v. Fed. Rsrv. Bank of N.Y., 651 F. Supp. 3d

695, 720 (S.D.N.Y. 2023) (quoting Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984)

(emphasis added). Beliefs that are in the plaintiff’s “own scheme of things, ‘religious’” include

“impulses prompted by dictates of conscience as well as those engendered by divine commands.”

Patrick, 745 F.2d at 158.

Here, Plaintiff states that he is Catholic and that he opposed the Mandate because the

vaccine was “produced using human cell lines derived from direct abortions,” which his faith

forbids. (Compl. ¶¶ 5, 77,79; Pl.’s Opp’n, ECF No. 15, at 14.) Plaintiff further states that he

opposed the Mandate because getting vaccinated conflicted with his conscience, through which

he believes Jesus Christ speaks to him. (Compl. ¶¶ 81–82.) Therefore, according to Plaintiff,

complying with the Vaccine Mandate would mean disobeying Jesus Christ. (Compl. ¶ 82.)

In an attempt to undermine Plaintiff’s failure to accommodate claim, Defendants insist

that Plaintiff’s convictions are merely “personal concerns” and “political beliefs” that are not

entitled to Title VII protection. (See Defs.’ Mem. at 18–19.) In support, Defendants direct the

Court to state court cases adjudicating CPLR § 7803 (Article 78) petitions. (See Defs.’ Mem. at

19.) In those cases, the courts were charged with determining whether various city agency

denials of requests for religious accommodations from the Vaccine Mandate were “arbitrary and

capricious.” See, e.g., Pierre v. Fire Dept. of the City of N.Y., (Art. 78), 2023 N.Y. Misc. LEXIS

1272 (Sup. Ct. N.Y. Cnty. Mar. 23, 2023), *6-7 (denying an Article 78 petition where the

petitioner objected to a vaccine “that has used stem cells from fetuses […] without any

connection to a sincerely held religious belief” because the “request was based on [the

petitioner’s] personal preferences”).6 Plainly, that line of cases has no bearing on whether

Plaintiff’s beliefs were religious for purposes of his Title VII claim. And, the cases actually

analyzing Title VII claims clearly state that a plaintiff’s beliefs are religious so long as the

plaintiff “in his own scheme of things” believes that they are. Patrick, 745 F.2d at 157. Plaintiff

pleads that his beliefs are religious. That is enough for now. See Algarin v. NYC Health +

Hosps. Corp., 678 F. Supp. 3d 497, 508 (S.D.N.Y. 2023), aff’d, No. 23-1063, 2024 WL 1107481

(2d Cir. Mar. 14, 2024) (concluding that similar allegations that the COVID-19 vaccine

conflicted with plaintiff’s Christian beliefs supported a prima facie Title VII employment

religious discrimination claim); see also Gardner-Alfred, 651 F. Supp. 3d at 721–22 (concluding

that similar beliefs conflicting with a COVID-19 vaccine requirement supported a prima facie

Title VII religious discrimination claim).7

Defendants’ argument that Plaintiff fails to allege that he was disciplined for failure to

comply with the Vaccine Mandate is equally unavailing. Specifically, Defendants argue that

neither Plaintiff’s placement on leave without parole nor ultimate termination constitutes

discipline. The Court disagrees. Allegations of termination for failure to comply with an

employment requirement are sufficient to plead discipline. See, e.g., Zelnick v. Fashion Inst.

6 See also Bath v. Fire Dept. of the City of N.Y., 2023 N.Y. Misc. LEXIS 2744 (Sup. Ct. N.Y. Cnty. Mar. 23, 2023)

(same) (Defs.’ Mem. at 19.)

7 Defendants’ attempt to distinguish Plaintiff’s “conscience” from his religious belief is no more convincing, as both

“impulses prompted by dictates of conscience as well as those engendered by divine commands are . . . safeguarded

against secular intervention.” Patrick, 745 F.2d at 158. Plaintiff alleges a clear nexus between his Catholic beliefs

and his refusal to take the vaccine. Accordingly, Plaintiff satisfies the first element of a prima facie failure to

accommodate claim.

Tech., 464 F.3d 217, 225 (2d Cir. 2006) (termination qualifies as adverse employment action for

purposes of Title VII claims); see also Corrales v. Montefiore Med. Ctr., No. 22-cv-3219 (LAP),

2023 WL 2711415, at *5-6 (S.D.N.Y. Mar. 30, 2023) (finding prima facie case for failure to

accommodate religious discrimination claim where plaintiff alleged that she had a bona fide

religious belief that conflicted with the vaccine mandate, informed her employer of it, and was

terminated). In arguing that Plaintiff’s placement on leave without parole and subsequent

termination were not disciplinary actions, Defendants again point the Court to cases that have no

bearing on Title VII claims. Here, Defendants cite decisions on motions for preliminary

injunction where plaintiffs alleged due process violations and the courts determined whether

leave without pay or termination constituted discipline that would have prompted hearing

requirements. See, e.g., Garland v. New York City Fire Dep’t, 574 F. Supp. 3d 120 (E.D.N.Y.

2021).8 But the Second Circuit has clearly held that discipline, or adverse employment actions

under Title VII’s anti-discrimination provisions are generally characterized as “materially

adverse change[s] in the terms and conditions of employment,” including “termination of

employment.” Bowles v. N.Y.C. Transit Auth., 285 F. App’x 812, 814 (2d Cir. 2008) (quoting

Zelnik v. Fashion Inst. Tech., 464 F.3d 217, 225 (2d Cir. 2006)). Here, Plaintiff alleged that

because he refused the COVID-19 vaccination, he was terminated on April 25, 2022. Thus,

Plaintiff satisfies the third element of a prima facie case for failure to accommodate under Title

VII.

8 See also Broecker v. New York City Dep’t of Educ., 585 F. Supp. 3d 299 (E.D.N.Y. 2022); Marciano v. de Blasio,

589 F. Supp. 3d 423, 430 (S.D.N.Y. 2022); (Defs.’ Mem. at 15.)

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss Plaintiff’s complaint is

GRANTED in part and DENIED in part.

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

October 28, 2024 LASHANN DEARCY HALL

United States District Judge