# Famiglietti v. New York City Department of Sanitation

> District Court, E.D. New York · October 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10659767

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10659767

## How later opinions describe it (automated extraction)

- holding that “class of one” claims are not available in the context of public employment

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659767. Public record. Not legal advice.