Brown v. South Shore University Hospital

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Fred Brown,

Plaintiff,

2:23-cv-6374

-v- (NJC) (ST)

South Shore University Hospital and Northwell Health, Inc.,

Defendants.

OPINION AND ORDER

NUSRAT J. CHOUDHURY, District Judge:

Plaintiff Fred Brown (“Brown”) brings this action against his former employers, South

Shore University Hospital (“South Shore”) and Northwell Health, Inc. (“Northwell Health,” and

collectively, “Defendants”), alleging that the termination of his employment for failure to

comply with Defendants’ COVID-19 vaccination requirements constituted religious

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

(“Title VII”), and the New York State Human Rights Law, New York Executive Law § 290–301

(“NYSHRL”). (Am. Compl., ECF No. 8.) Brown seeks injunctive relief, declaratory relief, and

compensatory and punitive damages. (Id. at 19–20.)

Before me is Defendants’ Motion to Dismiss all claims in the Amended Complaint

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). (Mot.

Dismiss, ECF No. 15.) For the reasons set forth below, Defendants’ Motion to Dismiss is granted

in its entirety and the Amended Complaint is dismissed.

FACTS

In order to evaluate Defendants’ Motion to Dismiss, I accept as true all well-pled

allegations in the Amended Complaint and draw all reasonable inferences in favor of Brown.

Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 318 n.2 (2d Cir. 2021).1 Brown is a Respiratory

Therapist and was employed by Defendants from December 2011 until February 16, 2022. (Am.

Compl. ¶¶ 5, 34.)

I. New York’s Emergency COVID-19 Vaccine Mandate

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

Health”) issued an emergency rule directing healthcare entities, including hospitals,2 to

“continuously require” certain employees to be fully vaccinated against COVID-19. 10 N.Y.

Comp. Codes R. & Regs. Tit. 10, § 2.61(c) (2021) (repealed Oct. 4, 2023) (“N.Y.C.R.R.” and

“Section 2.61”).3 Section 2.61 required the vaccination of:

all persons employed or affiliated with a covered entity, whether paid or unpaid,

including but not limited to employees, members of the medical and nursing staff,

contract staff, students, and volunteers, who engage in activities such that if they

1 Unless otherwise indicated, case quotations omit all internal quotation marks, citations,

footnotes, and alterations. Excerpts from the Amended Complaint and the parties’ submissions

are reproduced here exactly as they appear in the original documents. Errors in spelling,

punctuation or grammar will not be corrected or noted.

2 The emergency rule covered hospitals, as defined under New York Public Health Law (“N.Y.

Pub. Health L.”) § 2801. See N.Y.C.R.R. § 2.61(a)(1)(i).

3 “It is well established that a district court may rely on matters of public record in deciding a

motion to dismiss under Rule 12(b)(6), including case law and statutes.” Williams v. N.Y.C.

Hous. Auth., 816 F. App’x 532, 534 (2d Cir. 2020) (citing Pani v. Empire Blue Cross Blue

Shield, 152 F.3d 67, 75 (2d Cir. 1998)); see also Clark v. Hanley, 89 F.4th 78, 93 (2d Cir. 2023)

(recognizing that, at the motion to dismiss stage, a court may consider “matters of which judicial

notice may be taken”). I take judicial notice of Section 2.61 because this regulation is in the

public record. I also take judicial notice of New York Public Health Law §§ 12 and 2801, which

are New York State statutes and matters of public record.

were infected with COVID-19, they could potentially expose other covered

personnel, patients or residents to the disease.

10 N.Y.C.R.R. § 2.61(a)(2); see also id. § 2.61(c). Section 2.61 required covered personnel at

general hospitals and nursing homes to receive the first vaccine dose by September 27, 2021, and

those at other facilities covered by the Rule to receive the first dose by October 7, 2021. See id.

§ 2.61(c)–(d).

Section 2.61 provided for certain medical exemptions to the vaccination requirement. See

10 N.Y.C.R.R. § 2.61(d)(1). It did not, however, contain any “exemption for personnel who

oppose vaccination on religious or any other grounds not covered by the medical exemption.”

We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 274 (2d Cir. 2021) (“We The Patriots I”),

opinion clarified, 17 F.4th 368 (2d Cir. 2021) (“We The Patriots II”). Section 2.61 did not

prohibit employers from providing these employees “with a reasonable accommodation that

removes the individual from the scope of the Rule.” We The Patriots II, 17 F.4th at 370

(emphasis added).

II. The Defendants’ Vaccination Requirement

On August 2, 2021, Defendants began requiring their employees to test for COVID-19 on

a weekly basis. (Am. Compl. ¶ 18.) Alternatively, employees could get the COVID-19 vaccine in

lieu of the weekly tests. (Id.) The Defendants announced that, effective September 27, 2021, it

would implement a mandatory COVID-19 vaccination policy for its employees. (Am. Compl.

¶19.)4

4 The Amended Complaint refers to Defendants in the plural when referring to the COVID-19

vaccination policy, except for in paragraph 19. (Compare Am. Compl. ¶ 66 (“Defendants’

Vaccine Mandate”) with id. ¶ 19 (“Defendant implemented a mandatory covid-19 vaccination

policy effective September 27, 2021.”).) Therefore, the Court understands the reference to only

one Defendant in paragraph 19 to be a typographical error.

III. Order Temporarily Enjoining Section 2.61

On September 14, 2021, a district judge in the Northern District of New York issued a

temporary restraining order that enjoined the State from enforcing Section 2.61 to require that

employers deny requests for religious exemptions to the COVID-19 vaccination requirement. See

Dr. A v. Hochul, No. 21-cv-1009, 2021 WL 4189533, at *1 (N.D.N.Y. Sept. 14, 2021) (“Dr. A.

I”).

IV. Brown’s Request for a Religious Accommodation5

The Amended Complaint alleges that Brown maintains “sincerely held religious beliefs

as a Christian” that “require him to refuse the covid-19 vaccines because they are produced,

developed and tested with aborted fetal cells.” (Am. Compl. ¶ 6.) The Amended Complaint

alleges that Brown cannot “receive any of the Covid-19 vaccines without compromising his

closely held religious beliefs” and that:

[h]is faith also instructs him that vaccination is not morally obligatory in principle

and therefore must be voluntary; that there is a general moral duty to refuse the

use of medical products, including certain vaccines, that are produced using

human cell lines derived from direct abortions; that he is morally required to obey

his sure conscience; and that abortion is a sin and contrary to the teachings of the

Bible.

(Id. ¶ 7.)

5 As addressed infra Discussion Section III(B)(iii), while the Amended Complaint describes

Brown’s request as a request for an “accommodation,” Brown asked Defendants to provide him

with only one specific type of accommodation: a religious exemption to the COVID-19

vaccination requirement. See Am. Compl. ¶¶ 7–8, 19–21, 25, 48; see D’Cunha v. Northwell

Health Sys., No. 23-476, 2023 WL 7986441, at *2 (2d Cir. Nov. 17, 2023) (finding that the only

“religious accommodation” sought by the plaintiff from Northwell Health was “an exemption

from the COVID-19 vaccination requirement while continuing to provide direct patient care as a

resident,” which “would have posed an undue hardship on Defendant because it would have

required it to violate” Section 2.61).

The Amended Complaint alleges that Brown “applied for a religious accommodation to

the covid-19 mandate” and that he “notified the Defendants that his sincerely held religious

beliefs conflicted with the Vaccine Mandate and requested a reasonable accommodation.” (Id.

¶¶ 20, 48.) Brown “was willing to test for covid-19 every time he had to come to work,

approximately three times a week” and to “wear a face covering at all times.” (Id. ¶¶ 8, 21.)

Defendants denied Plaintiffs’ request for this specific accommodation—COVID-19 testing and

face covering in lieu of vaccination—on the basis that doing so would impose an undue hardship

upon Defendants. (Id. ¶ 22.) The Amended Complaint alleges that “[t]here was no dialogue

between the Plaintiff and Defendants” regarding this accommodation request, and that

Defendants did not at any point “engage in any sort of interactive process with Plaintiff or to

determine whether Defendants could reasonably accommodate Plaintiff’s sincerely held religious

belief that Plaintiff could not receive the COVID-19 vaccine.” (Id. ¶¶ 24–25; see also ¶ 50.)

In opposition to Defendants’ Motion to Dismiss, Brown asserts that his request for an

accommodation was denied on September 23, 2021, and attaches Defendants’ denial letter as an

exhibit. (Pl.’s Opp’n at 3, 4; Pl.’s Opp’n, Ex. A (“Northwell Health Sept. 23, 2021 Letter”), ECF

No. 17-1.)6 In this letter, Northwell Health stated that it was “in receipt of [Brown’s] request for

6 At the motion to dismiss stage, a court “may consider documents that are attached to the

complaint, incorporated in it by reference, integral to the complaint, or the proper subject of

judicial notice.” Jajati v. JPMorgan Chase Bank, N.A., No. 22-cv-07676, --- F. Supp. 3d. ---,

2024 WL 99659, at *2 (E.D.N.Y. Jan. 9, 2024) (citing United States v. Strock, 982 F.3d 51, 63

(2d Cir. 2020)). A document is “integral to a complaint” where the plaintiff has “(1) actual notice

of the extraneous information and (2) relied upon the documents in framing the complaint.” Id.

Here, the Amended Complaint brings religious discrimination claims alleging that Defendants’

denial of Brown’s accommodation request violated his rights under Title VII and the NYSHRL.

(See generally Am. Compl.) Accordingly, because Brown had notice of Northwell Health’s

September 23, 2021 letter responding to his “Accommodation Status” and relied on it in framing

the Amended Complaint, the letter is integral to the Amended Complaint and is properly

considered in resolving Defendants’ Motion to Dismiss.

a religious exemption from the New York State vaccine mandate requiring health care workers to

receive their first dose of a COVID-19 vaccine by September 27.” (Id.) The letter acknowledged

that on September 14, 2021, a New York court had issued an order temporarily restraining the

Department of Health from enforcing Section 2.61’s prohibition on religious exemptions to the

COVID-19 vaccination requirement but noted that “it is unknown whether the court’s temporary

order will become permanent.” (Id.) The letter explained that while Northwell Health

“underst[oo]d the rationale behind” Brown’s request for a religious exemption, it was “also . . .

mindful of the State’s mandate as well as [Northwell Health’s] operational concerns, including

the safety of Northwell’s patients, visitors and team members.” (Id.) The letter stated that

Northwell Health had reviewed Brown’s religious exemption request “in advance of the Court’s

ruling in the event that Northwell is ultimately permitted to consider such religious exemption”

in order to “provide clarity to you while we await the court’s final determination and in an effort

to address operational concerns.” (Id.) Northwell Health determined that his request “must be

denied as it would create an undue hardship.” (Id.) It reasoned that permitting Brown to report to

his position, which provides “direct patient care and/or has direct contact with the general

public,” while unvaccinated, posed an “unacceptable” threat to the health and safety of patients,

co-workers, and visitors. (Id.) According to Northwell Health, “there is no alternative

arrangement made that would allow [Brown] to perform the essential functions of [his] position

while unvaccinated without creating an undue hardship.” (Id.) The letter concluded by stating

that “consistent with our requirements of all other Northwell Health employees,” Brown was

“required to receive a first dose of the COVID-19 vaccine th[at] week as a condition of

continued employment.” (Id.)

V. Brown’s Termination

Brown was “placed on leave” and, on February 16, 2022, Defendants terminated Brown’s

employment for “failure to comply with the Vaccine Mandate.” (Am. Compl. ¶¶ 34, 49.) Brown

attached to the Amended Complaint the termination letter from Northwell Health dated February

16, 2022, which stated:

It has come to the Hospital’s attention that you failed to provide the Northwell

Health Leave of Absence Claim Center with the necessary medical documentation

to commence your medical leave. We have made multiple attempts to contact you

including the latest attempt January 4th, 2022, and January 25th,2022.

Additionally, you have a refused to receive the COVID vaccinations. Please be

advised that we will assume you are no longer interested in employment.

Effective February 16th,2022 your employment is hereby terminated.

(Am. Compl., Ex. A (“Northwell Health Termination Letter”), ECF No. 8-1.)7

VI. Subsequent Litigation and Repeal of Section 2.61

On October 12, 2021, the Northern District of New York issued a preliminary injunction

in Dr. A v. Hochul, which continued the injunction that barred New York State officials from

enforcing Section 2.61 to require employers to deny religious exemptions from the COVID-19

vaccination requirement. 567 F. Supp. 3d 362, 377–78 (N.D.N.Y. Oct. 12, 2021) (“Dr. A II”),

rev’d and vacated, We The Patriots I, 17 F.4th 266. On November 4, 2021, the Second Circuit

reversed and vacated the preliminary injunction. We The Patriots I, 17 F.4th 266, 296.

On January 13, 2023, in Medical Professionals for Informed Consent v. Bassett, the

Supreme Court in Onondaga County, New York, struck down Section 2.61, finding that the

regulation was beyond the Department of Health’s rule-making authority, violated the separation

7 Northwell Health’s February 16, 2022 Termination Letter is properly considered in deciding

Defendants’ Motion to Dismiss because it was attached to the Amended Complaint. Jajati, 2024

WL 99659, at *2; Strock, 982 F.3d at 63.

of powers doctrine, and was arbitrary and capricious. 185 N.Y.S.3d 578, 582, 585–86 (N.Y. Sup.

Ct. 2023).

On February 27, 2023, the Appellate Division of the New York Supreme Court, Fourth

Department, stayed the enforcement of the ruling in Bassett during the pendency of its appeal.

Order, Med. Prof. for Informed Consent, Inc. v. Bassett, No. CA 23-00161, 2023 WL 2344242

(N.Y. App. Div. Feb. 27, 2023). On October 4, 2023, while that appeal was pending, the

Department of Health repealed Section 2.61. 45 N.Y. Reg. 22 (Oct. 4, 2023).8

PROCEDURAL HISTORY

Brown filed a complaint with the Equal Employment Opportunity Commission

(“EEOC”), and on May 25, 2023, the EEOC issued Brown a Notice of Right to Sue. (Am.

Compl. ¶ 14.)9 On August 25, 2023, Brown initiated this action by filing the original complaint.

(ECF No. 1.) On November 29, 2023, Brown filed an Amended Complaint, which is the

operative complaint in this action. (Am. Compl.)

The Amended Complaint brings religious discrimination claims under Title VII for

disparate treatment, failure to accommodate, and disparate impact, and brings claims under the

NYSHRL for failure to accommodate and failure to engage in an interactive process and

cooperative dialogue. First, the Amended Complaint alleges a Title VII “Disparate

Treatment/Failure to Accommodate on the Basis of Religion” claim. (Id. ¶¶ 35–60.) Specifically,

the Amended Complaint alleges that “Defendant made no efforts at all to accommodate

8 On October 6, 2023, the appeal of Bassett was dismissed as moot because Section 2.61 had

been repealed. See Med. Prof. for Informed Consent, Inc. v. Bassett, No. CA 23-00161, 2023

N.Y. Slip Op. 5052 (N.Y. App. Div. Oct. 6, 2023).

9 Defendants do not contest that Brown exhausted his administrative remedies. (See generally

Defs.’ Mem., ECF No. 15-2.)

Plaintiff’s sincerely held religious objection to the covid-19 vaccination and then terminated

Plaintiff’s job of over 10 years because of that conflict” and that “Defendants did not engage in

an interactive process to determine the feasibility of accommodating Plaintiff.” (Id. ¶¶ 50, 55.)

Second, the Amended Complaint brings a disparate impact claim under Title VII, alleging that

“the Defendants’ Vaccine Mandate caused a disparate impact on the basis of religion.” (Id. ¶ 66.)

Third, the Amended Complaint alleges that Defendants discriminated against Brown on the basis

of his religion in violation of the NYSHRL by failing to provide him with “a reasonable

accommodation for his religious observance, practice, and belief (i.e., that he is prohibited from

taking the COVID-19 vaccine), which precludes him from complying with the Vaccine

Mandate,” and by “fail[ing] to engage in any interactive process with Plaintiff regarding his

accommodation request” and “violat[ing] Plaintiff’s right to a cooperative dialogue.” (Id. ¶¶ 86,

91, 102.)

On April 1, 2024, the Defendants served on Brown their Motion to Dismiss the Amended

Complaint. (See ECF No. 13). On May 14, 2024, the fully-briefed Motion to Dismiss was filed

with the Court. (Mot. Dismiss, ECF No. 15; Defs.’ Mem., ECF No. 15-2; Pl.’s Opp’n, ECF No.

17; Defs.’ Reply, ECF No. 16.)

JURISDICTION

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331

because Brown brings claims under a federal statute, 42 U.S.C. § 2000e-2. The Court has

supplemental jurisdiction over the state law claims alleged in the Amended Complaint under 28

U.S.C. § 1367(a) because that claim is part of the same case or controversy as the federal claim.

Venue in the Eastern District of New York is proper under 28 U.S.C. § 1391(b)(2)

because the Amended Complaint alleges that a substantial part of the events that gave rise to

Brown’s claims occurred in the Eastern District of New York. (Am. Compl. ¶¶ 10–11, 13.)

DISCUSSION

I. Article III Standing

The Amended Complaint seeks “injunctive and other equitable relief” for the alleged

violation of Brown’s rights under Title VII, as well as “a declaratory judgment that the practices

complained of in this Complaint are unlawful and violate Title VII.” (Id. ¶ 75; see also id. at 19.)

The Amended Complaint also seeks “injunctive and declaratory relief” for Defendants’ alleged

violations of the NYSHRL. (Id. ¶ 100.)

A court has no subject matter jurisdiction to hear a claim where the plaintiff lacks

standing under Article III of the Constitution. Cent. States Se. & Sw. Areas Health & Welfare

Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005); Plante v. Dake,

621 F. App’x 67, 69 (2d Cir. 2015). “Because the question of standing goes to the constitutional

limitations on the judicial Power of the United States,” courts “are entitled at any time sua sponte

to delve into the issue of standing even if defendants do not raise the issue.” Green Haven Prison

Preparative Meeting of Religious Soc’y of Friends v. N.Y. Dep’t of Corr. & Cmty. Supervision,

16 F.4th 67, 78 (2d Cir. 2021). In order to establish Article III standing, a plaintiff must show:

“(1) that they suffered an injury in fact, (2) that the injury is fairly traceable to Defendants’

challenged conduct, and (3) that the injury is likely to be redressed by a favorable judicial

decision.” Soule v. Conn. Ass’n of Schs., 90 F.4th 34, 45 (2d Cir. 2023) (citing Spokeo, Inc. v.

Robins, 578 U.S. 330, 338 (2016)). A “plaintiff[] must demonstrate standing for each claim that

they press and for each form of relief that they seek.” Id. (citing TransUnion LLC v. Ramirez,

594 U.S. 413 (2021)). Where a “plaintiff[] seek[s] injunctive or declaratory relief, they cannot

rely on past injury to satisfy the injury requirement but must show a likelihood that they will be

injured in the future.” Dorce v. City of New York, 2 F.4th 82, 95 (2d Cir. 2021). “Such an

allegation of future injury will be sufficient only if the threatened injury is certainly impending,

or there is a substantial risk that the harm will occur.” Id. (citing Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158 (2014)).

The Amended Complaint alleges facts to support Brown’s standing to seek damages for

claims under Title VII and the NYSHRL. Brown has alleged an injury in fact that is traceable to

Defendants’ alleged conduct—the Defendants’ termination of his employment as a Respiratory

Therapist on February 16, 2022. Am. Compl. ¶ 5; see Soule, 90 F.4th at 45. If Brown were to

prevail on his Title VII and NYSHRL claims, the requested damages would likely redress his

injury by providing compensation for alleged harms and, with respect to punitive damages, by

deterring future unlawful conduct. See Soule, 90 F.4th at 47 (“To satisfy the redressability

element of Article III standing, a plaintiff must show that it is ‘likely, as opposed to merely

speculative, that the alleged injury will be redressed by a favorable decision.’”) (quoting Lujan v.

Defs. of Wildlife, 504 U.S. 555, 561 (1992)).

The Amended Complaint fails, however, to allege any facts that support Brown’s

standing to seek injunctive or declaratory relief for any claims. Most significantly, it does not

allege that Brown continues to sustain any injury, or that he is likely to be injured again in the

future, by Defendants’ alleged unlawful conduct. The Amended Complaint does not allege that,

at any point after the termination of his employment, Brown asked Defendants for the

opportunity to rejoin Defendants or applied to work for them in any capacity. Moreover, Section

2.61 has been repealed, 45 N.Y. Reg. 22 (Oct. 4, 2023), and the Amended Complaint does not

allege that Defendants maintain the same or a similar COVID-19 vaccination requirement for

employees in the role Brown performed prior to his termination or that Defendants would deny a

request for religious accommodation from any such policy.

This case is therefore similar to Dorce, 2 F.4th 82, where the Second Circuit affirmed the

dismissal of injunctive and declaratory relief claims due to plaintiffs’ failure to allege ongoing or

future harm that would support Article III standing. Id. at 88. In Dorce, the plaintiffs challenged

a local law that authorized New York City to transfer ownership of foreclosed properties “free of

charge to designated partners, who develop and manage the properties” and sought a declaration

that the local law was unconstitutional. Id. at 87–88, 95. Although the plaintiffs alleged that

properties they had owned had been foreclosed upon in rem and transferred to a third party

pursuant to this local law, they failed to “demonstrate[] that they will be subject to future harm”

because they “could not show that they owned property that was likely to be transferred in the

future” under the law. Id. at 91, 93, 95. Thus, while the plaintiffs had alleged past harms, the

Second Circuit held that they lacked standing to seek injunctive or declaratory relief. Id. at 88.

Like the Dorce plaintiffs, Brown has alleged that he was injured in the past by

Defendants’ challenged conduct—specifically, the Defendants’ decision to terminate his

employment—but has not alleged any current injury or facts supporting the conclusion that he

faces a substantial risk of future injury or any future injury that is certainly impending. See id. at

95 (quoting Susan B. Anthony List, 573 U.S. at 158 (2014)) (“Such an allegation of future injury

will be sufficient only if the threatened injury is certainly impending, or there is a substantial risk

that the harm will occur.”).

The Amended Complaint alleges that due to Defendants’ alleged religious discrimination,

Brown “suffered, and continues to suffer, severe mental anguish and emotional distress,

including but not limited to depression, humiliation, embarrassment, stress and anxiety, loss of

self-esteem and self confidence, and emotional pain and suffering.” (Am. Compl. ¶ 74; see also

id. ¶ 99.) “The emotional consequences of a prior act,” however, are “simply . . . not a sufficient

basis for [equitable relief] absent a real and immediate threat of future injury by the defendant.”

City of Los Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983).

The Amended Complaint also alleges that due to Defendants’ alleged failure to

accommodate under the NYSHRL, Brown “continues to suffer, substantial losses, including but

not limited to the loss of past and future earnings, compensation and benefits, increases,

promotions, bonuses, and other employment benefits.” (Am. Compl. ¶ 98.) Because the

Amended Complaint does not allege that Brown has sought reemployment with Defendants,

however, any allegation that he is entitled to future income, compensation, and benefits is

speculative and does not give rise to standing to seek injunctive or declaratory relief.

Finally, Brown seeks a declaration that Defendants’ past conduct was “unlawful and

violate[d] Title VII of the Civil Rights Act.” (Am. Compl. at 19.) This relief stands in contrast to

the prospective nature of relief in the form of a declaratory judgment. Decisions of this Court

have emphasized that declaratory relief is prospective in nature and that Article III standing to

seek such relief must be based on allegations of current or future harm. See, e.g., Guan v.

Mayorkas, 530 F. Supp. 3d 237, 255 (E.D.N.Y. 2021). Because the Amended Complaint fails to

plausibly allege that Brown continues to be injured, that there is a substantial risk that future

injury will occur, or that he faces threatened injury that is certainly impending, the Amended

Complaint fails to establish Article III standing for Brown’s claims for declaratory and injunctive

relief under Title VII and the NYSHRL. See Dorce, 2 F.4th at 95.

Brown’s declaratory and injunctive relief claims are therefore dismissed without

prejudice for lack of subject matter jurisdiction. Merck-Medco Managed Care, 433 F.3d at 198;

Plante, 621 F. App’x at 69; see also Greene v. Northwell Health Inc., No. 23-cv-4846, 2024 WL

4287875, at *7–9 (E.D.N.Y. Sept. 25, 2024).

II. Brown’s Abandoned Claims

Defendants argue that Brown has abandoned his Title VII disparate impact claim as well

as any claim under Title VII or the NYSHRL that Defendants failed to engage in an interactive

process and/or cooperative dialogue, because he failed to address any of these claims in his brief

opposing Defendants’ Motion to Dismiss. (Defs.’ Reply at 4–5.) I agree.

Where a party is represented, “a court may, when appropriate, infer from [that] party’s

partial opposition that relevant claims or defenses that are not defended have been abandoned.”

Farag v. XYZ Two Way Radio Serv., Inc., No. 22-cv-1795, 2023 WL 2770219, at *2 (2d Cir.

Apr. 4, 2023) (citing Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir. 2014)); see also Moll

v. Telesector Res. Grp., Inc., 94 F.4th 218, 257 (2d Cir. 2024) (finding that a plaintiff

“abandoned . . . claims” that she failed to argue in response to a summary judgment motion).

Accordingly, the Second Circuit has “routinely affirmed the district court’s dismissal of a

plaintiff’s claims when the plaintiff did not discuss them in his opposition to the defendant’s

motion to dismiss.” Farag, 2023 WL 2770219, at *2 (citing Gross v. Rell, 585 F.3d 72, 94 (2d

Cir. 2009); Elliot-Leach v. N.Y.C. Dep’t of Educ., 710 F. App’x 449, 450 n.1 (2d Cir. 2017)).

In his opposition to Defendants’ Motion to Dismiss, Brown argues that the Amended

Complaint sufficiently pleads Title VII disparate treatment and failure to accommodate claims

and a NYSHRL failure to accommodate claim but fails to address in any way Defendants’

arguments for dismissal of the Title VII disparate impact claim or any claim that Defendants

failed to engage in an interactive process/cooperative dialogue. (See Pl.’s Opp’n.) By failing to

address in his brief Defendants’ arguments for dismissal of these claims, Brown has abandoned

them. See Farag, 2023 WL 2770219, at *2; Moll, 94 F.4th at 257.10 The abandoned Title VII

disparate impact claim and failure to engage in interactive dialogue claim are therefore dismissed

with prejudice. See Farag, 2023 WL 2770219, at *1–2 (affirming district court’s dismissal of

abandoned claims with prejudice); see also Digilytic Int’l FZE v. Alchemy Fin., Inc., No. 20-cv-

4650, 2024 WL 4008120, at *17 (S.D.N.Y. Aug. 30, 2024) (dismissing abandoned claims with

prejudice).

As discussed below, however, even if Brown had not abandoned the Title VII disparate

impact claim and failure to engage in interactive process/cooperative dialogue claim, the

Amended Complaint fails to sufficiently allege a Title VII claim under any theory; and because

the Amended Complaint fails to allege a claim over which this Court has original jurisdiction, I

decline to exercise supplemental jurisdiction over the NYSHRL claims under 28 U.S.C.

§ 1367(c)(3).

III. Failure to State a Claim

Defendants argue that the Amended Complaint has failed to state a cause of action for

any of Brown’s claims. (See Defs.’ Mem.) For the following reasons, Brown has failed to state a

cause of action under Title VII, and I decline to exercise supplemental jurisdiction over the

NYSHRL claims.

10 In their memorandum in support of their Motion to Dismiss, Defendants argue that, to the

extent the Amended Complaint “hint[s]” that it intends to pursue recovery under a theory of

failure to engage in the interactive process/cooperative dialogue, such a claim fails because there

is no such cause of action under either Title VII or the NYSHRL. (Defs.’ Mem. at 4 n.4.) I do not

need to reach this issue for two reasons. First, Brown did not respond to this argument in his

opposition. (See Am. Compl.; Pl.’s Opp’n.) Second, the Amended Complaint pleads failure to

engage in the interactive process/cooperative dialogue as theories in support of the NYSHRL

claim, but under 28 U.S.C. § 1367(c)(3), I decline to exercise supplemental jurisdiction over this

claim in the absence of jurisdiction over any federal claims as discussed below. See Am. Compl.

¶ 95; see also infra Discussion Section III(C).

A. Rule 12(b)(6) Standard

A complaint must plead sufficient facts to “state a claim to relief that is plausible on its

face.” Green v. Dep’t of Educ., 16 F.4th 1070, 1076–77 (2d Cir. 2021) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “In determining if a claim is sufficiently plausible to

withstand dismissal,” a court “accept[s] all factual allegations as true” and “draw[s] all

reasonable inferences in favor of the plaintiffs . . . .” Melendez v. City of New York, 16 F.4th

992, 1010 (2d Cir. 2021). Nevertheless, a court is “not required to credit conclusory allegations

or legal conclusions couched as factual allegations.” Hamilton v. Westchester Cnty., 3 F.4th 86,

91 (2d Cir. 2021). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard requires “more

than a sheer possibility that a defendant has acted unlawfully.” Id.; accord We The Patriots USA,

Inc. v. Conn. Off. of Early Childhood Dev., 76 F.4th 130, 144 (2d Cir. 2023), cert. denied, 144 S.

Ct. 2682 (2024). While “detailed factual allegations” are not required, “a pleading that offers

labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.”

Iqbal, 556 U.S. at 678. A complaint fails to state a claim “if it tenders naked assertions devoid of

further factual enhancement.” Id.

B. Title VII Claims

i. Legal Standards for Title VII Claims

Defendants argue that Brown has failed to state any Title VII claim against the

Defendants, whether a claim challenging religious discrimination on the basis of disparate

treatment, failure to reasonably accommodate Brown’s religious beliefs, or disparate impact.

(Defs.’ Mem. at 4–16.)

Under Title VII, it is “unlawful for employers to discharge or otherwise to discriminate

against any individual in his or her employment because of such individual’s religion.” We The

Patriots I, 17 F.4th at 291 (quoting 42 U.S.C. § 2000e-2(a)(1)). At the pleading stage, a plaintiff

can adequately plead a Title VII claim for employment discrimination on the basis of religion by

alleging (1) that he “is a member of a protected class,” (2) that he “was qualified” for his

position, (3) that he “suffered an adverse employment action,” and (4) facts that provide “at least

minimal support for the proposition that the employer was motivated by discriminatory intent.”

Buon v. Spindler, 65 F.4th 64, 79 (2d Cir. 2023).

An employer may also be held liable under Title VII for failing “to accommodate the

religious practice of their employees unless doing so would impose an undue hardship on the

conduct of the employer’s business.” Groff v. DeJoy, 600 U.S. 447, 453–54 (2023) (citing 42

U.S.C. § 2000e(j)).11 In order to plead a Title VII claim for failure to grant a religious

accommodation, a plaintiff “must plausibly allege that (1) [the plaintiff] held a bona fide

religious belief conflicting with an employment requirement; (2) [the plaintiff] informed [the]

employers of this belief; and (3) [the plaintiff was] disciplined for failure to comply with the

conflicting employment requirement.” D’Cunha v. Northwell Health Sys., No. 23-476, 2023 WL

7986441, at *2 (2d Cir. Nov. 17, 2023) (citing Knight v. Conn. Dep’t of Pub. Health, 275 F.3d

156, 167 (2d Cir. 2001)).

Once an employee establishes a prime facie case, the “employer must offer him or her a

reasonable accommodation, unless doing so would cause the employer to suffer an undue

11 “The statute defines ‘religion’ to include ‘all aspects of religious observance and practice, as

well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an

employee’s religious observance or practice without undue hardship on the employer’s

business.’” We The Patriots I, 17 F.4th at 291 (quoting 42 U.S.C. § 2000e(j)).

hardship.” Hale v. Vidal, No. 22-2973, 2023 WL 7211909, at *2 (2d Cir. Nov. 2, 2023) (quoting

Baker v. The Home Depot, 445 F.3d 541, 546 (2d Cir. 2006)). An employer may raise the

defense of an undue hardship in a pre-answer motion to dismiss “if the defense appears on the

face of the complaint.” D’Cunha, 2023 WL 7986441, at *2 (citing Iowa Pub. Emps.’ Ret. Sys. v.

MF Glob., Ltd., 620 F.3d 137, 145 (2d Cir. 2010)).

An employee can also bring a Title VII religious discrimination claim by demonstrating

that an employment practice caused a disparate impact on the basis of religion. 42 U.S.C.

§ 2000e-2(k)(1); see also Mandala v. NTT Data, Inc., 975 F.3d 202, 207 (2d Cir. 2020). In order

successfully plead a disparate impact religious discrimination claim, a plaintiff must allege facts

that “(1) identify a specific employment practice or policy; (2) demonstrate that a disparity

exists; and (3) establish a causal relationship between the two.” Mandala, 975 F.3d at 207. At the

pleading stage, “a plaintiff need not plead a prima facie case,” but the plaintiff “must at least set

forth enough factual allegations to plausibly support each of the three basic elements of a

disparate impact claim.” Id. “A disparate impact plaintiff must establish that a comparison

between individuals affected and unaffected by the questioned policy reveals ‘that although

neutral, the policy in question imposes a significantly adverse or disproportionate impact on a

protected group of individuals.’” Rizzo v. New York City Dep’t of Sanitation, No. 23-cv-7190,

2024 WL 3274455, at *4 (S.D.N.Y. July 2, 2024) (citing Tsombanidis v. West Haven Fire Dep’t,

352 F.3d 565, 575 (2d Cir. 2003)).

ii. Title VII Religious Discrimination Claim

Defendants argue that the Amended Complaint fails to plausibly allege a Title VII

religious discrimination claim because Brown’s failure to take the COVID-19 vaccine rendered

him unqualified for his position with Defendants and because the Amended Complaint does not

allege facts supporting an inference of discriminatory intent. (Defs.’ Mem. at 6–7.) Brown does

not address either of these arguments in his opposition brief, although he generally argues that

the Amended Complaint plausibly alleges each element of a prima facie case for a Title VII

disparate treatment claim. (See Pl.’s Opp’n.)

To be qualified for a position under Title VII, an employee must satisfy “the criteria the

employer has specified for the position.” Scé v. City of New York, No. 20-3954, 2022 WL

598974, at *1 (2d Cir. Mar. 1, 2022) (citing Williams v. R.H. Donnelley, Corp., 368 F.3d 123,

127 (2d Cir. 2004), abrogated on other grounds in Muldrow v. City of St. Louis, 601 U.S. 346

(2024)); Martin v. City Univ. of New York, No. 17-cv-6791, 2018 WL 6510805, at *8 (S.D.N.Y.

Dec. 11, 2018) (to be qualified, “an employee must not only be capable of performing the work;

[he] must also satisfy the employer’s conditions of employment.”) (citing Moore v. City of New

York, No. 16-cv-7358, 2018 WL 1281809, at *4 (S.D.N.Y. Mar. 8, 2018), aff’d, No. 18-947, 754

F. App’x 407 (2d Cir. 2018)). The Second Circuit has recognized that “[v]accination is a

condition of employment in the healthcare field.” We The Patriots I, 17 F.4th at 294; see also

Kane v. de Blasio, 623 F. Supp. 3d 339, 363 (S.D.N.Y. 2022) (collecting cases).

District courts in this Circuit have found that where a hospital imposed a COVID-19

vaccination requirement as an employment requirement and an employee failed to comply with

that requirement, the employee was not qualified for their position for purposes of bringing a

Title VII employment discrimination claim. See Haczynska v. Mount Sinai Health Sys., Inc., No.

23-cv-3091, 2024 WL 3178639, at *11 n.15 (E.D.N.Y. June 26, 2024); Lake v. HealthAlliance

Hosp. Broadway Campus, No. 22-cv-656, 2024 WL 3226273, at *7 n.13 (N.D.N.Y. June 27,

2024); Tandian v. State Univ. of New York, 698 F. Supp. 3d 425, 439 (N.D.N.Y. 2023), appeal

dismissed, No. 23-7984 (2d Cir. May 9, 2024).

As in those cases, the Amended Complaint here alleges that Defendants established a

requirement for all employees to receive the COVID-19 vaccine effective September 27, 2021.

(Am. Compl. ¶ 19; see also Northwell Health Sept. 23, 2021 Letter.) It further alleges that in the

September 23, 2021 letter, Northwell Health stated that it “determined that permitting [Brown],

as an unvaccinated team member, to report to [his] worksite that provides direct patient care

and/or has direct contact with the general public poses an unacceptable health and safety threat to

patients, co-workers, and visitors.” (Northwell Health Sept. 23, 2021 Letter.) The February 16,

2022 letter from Northwell Health states that Brown “refused to receive the COVID

vaccinations.” (Northwell Health Termination Letter.)

Accordingly, as of September 27, 2021, when Defendants’ vaccination requirement went

into effect, Brown was not qualified for his position as a Respiratory Therapist at South Shore

and Northwell Health. The Amended Complaint thus fails to state a plausible Title VII religious

discrimination claim on the basis of disparate treatment. See Haczynska, 2024 WL 3178639, at

*11 n.15; D’Cunha, 2023 WL 2266520, at *3. Because Brown was unqualified for his position, I

need not reach the question of whether the Amended Complaint sufficiently pleads

discriminatory intent such that it states a plausible Title VII religious discrimination claim based

on disparate treatment.12

12 Even if the allegations of the Amended Complaint were sufficient to show that Brown was

qualified for the position, the Amended Complaint also fails to sufficiently plead Defendants’

intent to discriminate against Brown on the basis of his religious beliefs. The Amended

Complaint does not allege any facts that raise even a minimal inference of Defendants’ intent to

discriminate against Brown on the basis of his religion. It alleges that Brown was “placed on

Leave and then terminated for failure to comply with the Vaccine Mandate,” not on the basis of

Brown’s religion. (Am. Compl. ¶ 49 (emphasis supplied).) The Amended Complaint also alleges

that Northwell Health refused to provide Brown with a religious accommodation “on basis that

doing so would impose upon Defendants an undue hardship,” not that Defendants acted with any

intent to discriminate on the basis of Brown’s religion. (Id. ¶ 22.) The September 23, 2021 letter

iii. Title VII Failure to Accommodate Claim

Defendants argue that the Title VII religious accommodation claim should be dismissed

because Brown’s requested accommodation, if granted, would have caused Defendants undue

hardship by requiring them to violate Section 2.61. (Defs.’ Mem. at 8–9.) I agree. Under a long

line of opinions in this Circuit, the religious accommodation that Brown sought—an exemption

from the Defendants’ COVID-19 vaccination requirement while continuing to work in a position

where he would “engage in activities such that if [he] were infected with COVID-19, [he] could

potentially expose other covered personnel, patients or residents to the disease,” 10 N.Y.C.R.R. §

2.61(a)(2)—would have posed an undue hardship to the Defendants by requiring them to violate

the Department of Health’s vaccination requirement set forth in Section 2.61.

Title VII “requires employers to accommodate the religious practice of their employees

unless doing so would impose an undue hardship on the conduct of the employer’s business.”

Groff, 600 U.S. at 453–54. In Groff, the Supreme Court clarified that “undue hardship is shown

when a burden is substantial in the overall context of an employer’s business.” Id. at 468

(emphasis supplied). In so holding, the Supreme Court rejected lower courts’ interpretation of a

prior Supreme Court decision, Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), as

having established a rule that an employer need only show that a religious accommodation posed

“a de minimis” burden—i.e., a burden that is “very small or trifling”—to establish “undue

hardship.” Id. at 468–69 (“We hold that showing ‘more than a de minimis cost,’ as that phrase is

from Northwell Health is consistent with these allegations, stating that Defendants “determined

that permitting [Brown], as an unvaccinated team member, to report to [his] worksite that

provides direct patient care and/or has direct contact with the general public poses an

unacceptable health and safety threat to patients, co-workers, and visitors.” (Northwell Health

Sept. 23, 2021 Letter.) The only allegations that suggest any discriminatory intent towards

Brown—the allegations that “Defendants terminated Plaintiff’s employment because of

Plaintiff’s sincerely held beliefs” (Am. Compl. ¶ 2) are wholly conclusory. Hamilton, 3 F.4th at

91.

used in common parlance, does not suffice to establish ‘undue hardship’ under Title VII.

Hardison cannot be reduced to that one phrase.”). In determining whether a requested religious

accommodation imposes a substantial burden on an employer in the overall context of its

business, “courts must . . . take[] into account 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 470–71. An employer satisfies the “undue hardship”

standard when it has shown that granting a religious accommodation “would result in substantial

increased costs in relation to the conduct of its particular business.” Id. at 470. Groff observed

that “an accommodation’s effect on co-workers may have ramifications for the conduct of the

employer’s business.” Id. at 472. Groff further explained:

Title VII requires that an employer reasonably accommodate an employee’s

practice of religion, not merely that it assess the reasonableness of a particular

possible accommodation or accommodations. This distinction matters. Faced with

an accommodation request like Groff’s, it would not be enough for an employer

to conclude that forcing other employees to work overtime would constitute an

undue hardship. Consideration of other options, such as voluntary shift swapping,

would also be necessary.

Id. at 473.

In Groff, a United States Postal Service (“USPS”) employee sought a religious

accommodation that would permit him not to work on Sundays, which required his coworkers to

take over his Sunday mail delivery duties. Id.at 455–46. After clarifying the legal standard for

determining undue hardship, the Supreme Court vacated and remanded the case, holding that the

Third Circuit erred in finding that permitting the plaintiff to avoid Sunday work would cause the

USPS “undue hardship” by “impos[ing] on his coworkers, disrupt[ing] the workplace and

workflow, and diminish[ing] employee morale.” Groff, 600 U.S. at 456. The Supreme Court

noted that the Third Circuit may have failed to account for possible accommodations that would

not have imposed an undue hardship, including incentive pay to encourage co-workers to cover

Sunday shifts and coordination with nearby USPS stations. Id. at 473.

The Second Circuit applied the clarified standard set forth in Groff for determining

whether a religious accommodation would impose an undue hardship in D’Cunha v. Northwell

Health Systems. 2023 WL 7986441. It recognized that Title VII does not require an employer to

provide the specific religious accommodation that a plaintiff prefers if granting that specific

accommodation would impose an undue hardship in the context of the employer’s business. See

id. at *2–3 (citing We The Patriots I, 17 F.4th at 292); see also We The Patriots II, 17 F.4th at

370.

The Second Circuit has held that if an “employee’s work assignments mean that he

qualifies as ‘personnel’” under Section 2.61, “[he] is covered by the Rule and [his] employer

must ‘continuously require’ that [he] is vaccinated against COVID-19.” We The Patriots II, 17

F.4th at 370 (citing 10 N.Y.C.R.R. § 2.61); see also D’Cunha, 2023 WL 7986441, at *2–3.

“Courts in this Circuit have repeatedly rejected discrimination claims that would require

employers to violate Section 2.61 to accommodate a request for religious exemption or

accommodation,” finding that requiring an employer to violate this state law would pose an

undue hardship on the employer. Addonizio v. Nuvance Health, No. 23-cv-1582, 2024 WL

2958795, at *7 (S.D.N.Y. June 11, 2024) (collecting cases); see D’Cunha, 2023 WL 7986441, at

*2–3.13 In D’Cunha, the Second Circuit affirmed one of these district court decisions by

13 See also Booth v. N.Y. Presbyterian Hosp.-Behav. Health Ctr., No. 22-cv-10114, 2024 WL

1381310, at *4 (S.D.N.Y. Mar. 29, 2024); St. Hillaire v. Montefiore Med. Ctr., No. 23-cv-4763,

2024 WL 167337, at *4 (S.D.N.Y. Jan. 16, 2024); Moore v. Montefiore Med. Ctr., No. 22-cv-

10242, 2023 WL 7280476, at *6 (S.D.N.Y. Nov. 3, 2023); Algarin v. NYC Health + Hosps.

Corp., 678 F. Supp. 3d 497, 509 (S.D.N.Y. June 23, 2023); Dennison v. Bon Secours Charity

Health Sys. Med. Grp., P.C., No. 22-cv-2929, 2023 WL 3467143, at *5–6 (S.D.N.Y. May 15,

summary order. The plaintiff in D’Cunha was a medical resident who, like Brown, was

employed by Northwell Health and was required to be vaccinated under both Section 2.61 and

Northwell Health’s parallel requirement. 2023 WL 7986441, at *1. The Second Circuit found

that Northwell Health “could not have granted [the plaintiff’s] religious-exemption request

without violating [Section 2.61], exposing itself to potential penalties, and thereby suffering an

undue hardship.” Id. at *3. This ruling was consistent with the Second Circuit’s decision in We

The Patriots, which held that “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.” Id. (quoting We The Patriots I, 17

F.4th at 292).14

The Second Circuit decided We The Patriots I, 17 F.4th 266, and clarified the opinion in

We The Patriots II, 17 F.4th 368, before the Supreme Court decided Groff, 600 U.S. 447. But in

D’Cunha, the Second Circuit found that the conclusion that Northwell Health had shown it

would experience undue hardship by granting an employee a religious exemption from Section

2.61’s vaccination requirement was “consistent with the Supreme Court’s clarification of the

‘undue hardship’ standard in Groff because the burden placed on an employer from violating a

2023); Shahid-Ikhlas v. N.Y. & Presbyterian Hosp., Inc., 2023 WL 3628151, at *5 (S.D.N.Y.

May 5, 2023); Riley v. N.Y.C. Health and Hosps. Corp., No. 22-cv-2736, 2023 WL 2118073, at

*4 (S.D.N.Y. Feb. 17, 2023); Marte v. Montefiore Med. Ctr., No. 22-cv-03491, 2022 WL

7059182, at *3–4 (S.D.N.Y. Oct. 12, 2022).

14 In D’Cunha, the Second Circuit also relied on a prior summary order in Lowman v. NVI LCC,

821 F. App’x 29 (2d Cir. 2020). See D’Cunha, 2023 WL 7986441, at *3. In Lowman, the Second

Circuit ruled that an employer did not violate Title VII when it refused to hire an applicant who

declined to provide his Social Security number because the employer’s Social Security number

disclosure requirement was “mandated by federal law” and the employer could not “depart from

the policy to accommodate [the applicant] without suffering an undue hardship.” D’Cunha, 2023

WL 7986441, at *3 (citing Lowman, 821 F. App’x at 32).

state law, like [Section 2.61] in this case, is both ‘excessive’ and ‘unjustifiable.’” D’Cunha, 2023

WL 7986441, at *3 (citing Groff, 600 U.S. at 469).

In D’Cunha, the Second Circuit also acknowledged that the Northern District of New

York, in Dr. A I, issued a September 14, 2021 preliminary injunction barring the enforcement of

Section 2.61. Id. at *3 n.3 (citing Dr. A I, 2021 WL 4189533). It nevertheless found that this

preliminary injunction “does not alter our conclusion that undue hardship existed in this case

because [Section 2.61] was still valid law during the injunction period.” Id. at *3 n.3. Further,

while Section 2.61 was repealed in 2023, the Second Circuit found that the repeal “does not

change our analysis in the present case as the events at issue occurred in 2021.” Id. at *3 n.4.

Here, Northwell Health’s September 23, 2021 letter states that Northwell Health

considered Brown’s position as a Respiratory Therapist to be a public-facing role that would fall

under Section 2.61’s definition of “personnel.” (See Northwell Health Sept. 23, 2021 Letter.)

Brown does not dispute that his position fell under the definition of “personnel” in Section 2.61.

(See Pl.’s Opp’n.) The Amended Complaint alleges that Brown sought the same accommodation

as the one sought by the plaintiffs in We The Patriots and D’Cunha—namely, to remain in a

public-facing healthcare position while unvaccinated, which would have required the Defendants

to violate Section 2.61. See We The Patriots II, 17 F.4th at 370; D’Cunha, 2023 WL 7986441, at

*2–3.

If the Defendants had violated Section 2.61 by granting Brown’s sole requested

accommodation, they would have exposed themselves to penalties under New York Public

Health Laws, including the loss of their operating licenses. See N.Y. Pub. Health L.

§ 2806(1)(a)(1) (“A hospital operating certificate may be revoked, suspended, limited or

annulled . . . [if] the hospital has failed to comply with the provisions of [Article 28] or rules and

regulations promulgated thereunder.”); N.Y. Pub. Health L. § 12 (“[A]ny person who violates,

disobeys or disregards any term or provision of this chapter or of any lawful notice, order or

regulation pursuant thereto for which a civil penalty is not otherwise expressly prescribed by

law, shall be liable to the people of the state for a civil penalty . . . .”); see also Pastor v. Mercy

Med. Ctr., No. 22-cv-07847, 2024 WL 3029118, at *5 (E.D.N.Y. June 17, 2024) (“A violator of

Section 2.61 could suffer stringent penalties, including loss of its operating license.”).

The face of the Amended Complaint and the September 23, 2021 Northwell Health letter,

which Brown attached to his opposition and relied upon in drafting the Amended Complaint (see

supra note 6), demonstrate that granting Brown an exemption from the vaccination requirement

would have caused Defendants an undue hardship because it would have required them to violate

a state law and face potential penalties for doing so. D’Cunha, 2023 WL 7986441, at *1–2; N.Y.

Pub. Health L. §§ 12, 2806(1)(a)(1). The Amended Complaint thus fails to state a Title VII claim

for failure to provide a religious accommodation.

Brown argues that his continued employment as a Respiratory Therapist while

unvaccinated would not have caused Defendants to violate Section 2.61. (Pl.’s Opp’n at 9–11.)

Brown’s arguments are unpersuasive for four reasons.

First, Brown appears to argue that granting his sole requested accommodation—to

continue in a public-facing role at Northwell Health while remaining unvaccinated—would not

have cause Defendants to violate Section 2.61. He argues the following:

Plaintiff has pled that he submitted a letter to Defendants detailing why his

sincere religious reliefs conflict with an employment requirement. Plaintiff was

terminated for failing to comply with the conflicting employment requirements

because of his religious beliefs. Consequently, it would not have violated the

mandate for Defendants to grant Plaintiff a religious exemption to the COVID-19

vaccination policy.

(Pl.’s Opp’n at 9.) Brown does not explain why termination for failure to comply with an

employment requirement was “because of his reliefs beliefs.” Additionally, despite Brown’s use

of the word “consequently,” he does not provide any explanation for how Defendants could have

complied with Section 2.61 while also permitting him to continue working as a Respiratory

Therapist interacting with members of the public without receiving the COVID-19 vaccine, as

Section 2.61 required.

Second, Brown argues that “[a]t the time that Plaintiff’s Accommodation request was

denied,” on September 23, 2021, “there was no DOH Mandate” because there “was a Court

Order staying the revised DOH mandate eliminating religious exemptions.” (Pl.’s Opp’n at 9–

10.) Brown does not cite any legal authority to support this assertion, but I understand this

argument to reference that the Department of Health was temporarily enjoined from enforcing

Section 2.61 from September 14, 2021 to October 12, 2021, and was then subject to a permanent

injunction enjoining it from enforcing Section 2.61 from October 12, 2021 to November 4, 2021,

when the Second Circuit vacated the injunction in We The Patriots I, 17 F.4th 266. See Dr. A,

2021 WL 4189533; Dr. A II, 567 F. Supp. 3d 362. The Second Circuit in D’Cunha has rejected

the argument that Brown raises here: that permitting an employee to remain in a public-facing

healthcare role without vaccination against COVID-19 would not result in an undue hardship for

a hospital employer because a district court’s preliminary injunction had enjoined New York

State officials from enforcing Section 2.61 during the time period in question. See D’Cunha,

2023 WL 7986441, at *3 n.3 (finding that “this [preliminary] injunction does not alter our

conclusion that undue hardship existed in this case because [Section 2.61] was still valid law

during the injunction period”). Numerous courts in this Circuit have applied this ruling. See, e.g.,

Dennison v. Bon Secours Charity Health Sys. Med. Grp., P.C., No. 22-cv-2929, 2023 WL

3467143, at *5 n.5 (S.D.N.Y. May 15, 2023); Algarin v. NYC Health + Hosps. Corp., 678 F.

Supp. 3d 497, 511 (S.D.N.Y. 2023), aff’d, No. 23-1063, 2024 WL 1107481 (2d Cir. Mar. 14,

2024); Lake v. HealthAlliance Hosp. Broadway Campus, No. 22-cv-656, 2024 WL 3226273, at

*8 (N.D.N.Y. June 27, 2024); see also Cagle v. Weill Cornell Med., 680 F. Supp. 3d 428, 437

(S.D.N.Y. 2023) (pre-dating D’Cunha, but applying similar reasoning).

For example, in Dennison v. Bon Secours Charity Health System Medical Group, P.C.,

the district court reasoned that, if a court’s preliminary injunction of a state law permitted

employers to ignore that state law, “employers would be required to accurately predict the

outcome of litigation in order to avoid liability for discrimination on the one hand, or liability for

violating state law on the other.” 2023 WL 3467143, at *5 n.5. For the reasons set forth in

D’Cunha and Dennison, the fact that, at the time Brown was terminated, the Northern District of

New York’s had issued a preliminarily injunction restraining enforcement of Section 2.61 does

not change the conclusion that granting Brown’s specific requested accommodation would have

caused Defendants an undue hardship. See id.; D’Cunha, 2023 WL 7986441, at *3 n.3.

Third, Brown argues that his request for an “‘accommodation’ (i.e., a blanket exemption)

would NOT have required Defendants to violate the DOH Mandate” because he was willing to

test for COVID-19 before coming to work each day and to wear a face mask and because he had

been working without being vaccinated since December 2020. (Pl.’s Opp’n at 10; see also Am.

Compl. ¶ 8.) Section 2.61 did not permit covered personnel to test for COVID-19 and wear a

face covering in lieu of being vaccinated, so Brown’s willingness to take these measures does not

change my conclusion that permitting Brown to work for Defendants as a Respiratory Therapist

while unvaccinated would have caused Defendants to violate Section 2.61. Furthermore,

Brown’s unvaccinated status between December 2020 and September 27, 2021 is irrelevant to

the question of whether Defendants would have violated Section 2.61 if they permitted Brown to

continue working as a Respiratory Therapist after September 27, 2021 without receiving a

COVID-19 vaccine. Section 2.61 was not enacted until August 2021 and did not take effect until

September 27, 2021. 10 N.Y. Comp. Codes R. & Regs. Tit. 10, § 2.61(c) (2021) (repealed Oct. 4,

2023).

Fourth, Brown also argues that “since Defendants never discussed any potential

accommodations with” him and the Amended Complaint “does not discuss potential reasonable

accommodations,” Defendants have failed to meet their burden to show that any accommodation

would have caused Defendants undue hardship. (Pl.’s Opp’n at 12.)

In Groff, the Supreme Court reiterated that “Title VII requires that an employer

reasonably accommodate an employee’s practice of religion, not merely that it assess the

reasonableness of a particular possible accommodation or accommodations.” Groff, 600 U.S. at

473. While the Amended Complaint refers to Brown’s request as an “accommodation,” (Am.

Compl. ¶¶ 8–9), the only “accommodation” that Brown requested was to receive an exemption

from the vaccination requirement and to instead submit weekly COVID-19 tests if the exemption

was granted. (Id. ¶ 21.) Indeed, Brown describes the “accommodation request” as a “blanket

exemption” in his opposition. (Pl.’s Opp’n at 10.) After the Supreme Court decided Groff, the

Second Circuit reaffirmed that “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.” D’Cunha, 2024 WL 7986441, at *3

(quoting We The Patriots I, 17 F.4th at 292.)

The Amended Complaint does not allege that Brown was amenable to anything other

than the specific accommodation he requested—continuing to perform his public-facing role as a

Respiratory Therapist while being exempt from the COVID-19 vaccination requirement. There

are no factual allegations concerning his openness or qualifications for a role with Defendants

that did not fall within the definition of “personnel” covered by the COVID-19 vaccination

requirement.

Nor does the Amended Complaint allege that Brown’s employment responsibilities could

be performed remotely. To the extent that Defendants could have accommodated Brown’s

alleged religious belief by placing him in a remote position, courts in this Circuit have found that

such an accommodation would result in an undue hardship on hospital defendants, especially in

the context of the COVID-19 pandemic, because such employers would have to hire another

employee to perform an employee’s in-person duties. See, e.g., Conde v. Mid Hudson Reg’l

Hosp. Med. Ctr., No. 22-cv-3085, 2024 WL 168282, at *8 (S.D.N.Y. Jan. 12, 2024). Moreover,

“an employer is not required to create a position to accommodate an employee’s religious

beliefs.” Shahid-Ikhlas v. New York & Presbyterian Hosp., Inc., No. 22-cv-10643, 2023 WL

3628151, at *5 (S.D.N.Y. May 5, 2023), report and recommendation adopted, 2023 WL

3626435 (S.D.N.Y. May 24, 2023); see also Robinson v. Children’s Hosp. Bos., No. 14-cv-

10263, 2016 WL 1337255, at *8 (D. Mass. Apr. 5, 2016) (collecting cases).15

Brown also argues that “[i]n the absence of objective medical evidence to the contrary,

Defendants cannot establish . . . that granting Plaintiff an exemption would have endangered

15 The case upon which Brown relies, New York City Transit Authority v. Exec. Dep’t, Div. of

Human Rights, 89 N.Y.2d 79 (N.Y. 1996), is distinguishable. In that case, as in Groff, the

plaintiff sought a religious accommodation from mail delivery work during the Sabbath, and the

New York Court of Appeals, addressing only a NYSHRL claim and not Title VII, found that

there was no proof that the employer defendants took any steps to accommodate the plaintiff’s

religious needs, such as by extending the plaintiff’s work schedule on other days to account for

her inability to work on Saturdays. Id. at 89–90. In New York Transit Authority, however, unlike

here, accommodating the plaintiff’s request not to work on Saturdays would not require

defendants to violate a state law.

anyone.” (Pl.’s Opp’n at 12–13.) Defendants are not required to make such a showing because

they have shown that granting Brown an exemption from the vaccination requirement would

have required them to violate a state law, Section 2.61, which itself would cause them to

experience an undue hardship under the Groff standard. D’Cunha, 2023 WL 7986441, at *2–3.

For these reasons, Brown’s sole requested accommodation, if granted, would have caused

Defendants undue hardship by requiring them to violate Section 2.61. The Amended Complaint

thus fails to state a Title VII religious accommodation claim.

iv. Title VII Disparate Impact Claim

Defendants argue that the Amended Complaint fails to allege sufficient facts to support a

Title VII disparate impact claim. (Defs.’ Mem. at 13–16). As previously discussed, Brown does

not respond to this argument, and I have deemed this claim abandoned. See supra Discussion

Section II.

Even if Brown had not abandoned this claim, however, the Amended Complaint would

fail to plead a plausible Title VII disparate impact claim. Title VII provides that “[a]n unlawful

employment practice based on disparate impact is established . . . if . . . a complaining party

demonstrates that a respondent uses a particular employment practice that causes a disparate

impact on the basis of race, color, religion, sex, or national origin and the respondent fails to

demonstrate that the challenged practice is job related for the position in question and consistent

with business necessity . . . .” 42 U.S.C. § 2000e-2(k)(1)(A). In order to plead a religious

discrimination claim based on disparate impact, a plaintiff must allege facts that “(1) identify a

specific employment practice or policy; (2) demonstrate that a disparity exists; and (3) establish a

causal relationship between the two.” Mandala, 975 F.3d at 207. Regarding the second element,

“[t]he complaint must identify members of a protected group that are affected by the neutral

policy and then identify similarly situated persons who are unaffected by the policy.” Rizzo, 2024

WL 3274455, at *4. “To nudge a disparate impact claim across the line from conceivable to

plausible . . . plaintiffs typically rely on statistical evidence to show a disparity in outcome

between groups.” Mandala, 975 F.3d at 209. “[T]he statistical analysis must, at the very least,

focus on the disparity between appropriate comparator groups” by “reveal[ing] disparities

between populations that are relevant to the claim the plaintiff seeks to prove.” Id. at 210.

The Amended Complaint alleges that the Defendants “implemented a mandatory covid-

19 vaccination policy effective September 27, 2021.” (Am. Compl. ¶ 19.) It also alleges that

“[t]he Defendants’ Vaccine Mandate caused a disparate impact on the basis of religion,” that

“[t]hose who religiously oppose the COVID-19 vaccination were unable to continue working due

to the Vaccine Mandate,” and that “those who did not religiously oppose the COVID-19

vaccination were able to continue working.” (Am. Compl. ¶¶ 66, 72–73.)

These allegations satisfy the requirement to plead the first element of a Title VII disparate

impact claim—a challenged employment policy. But, for the reasons that follow, they fail to

allege facts that plausibly support the second and third elements of the claim.

First, the Amended Complaint fails to provide factual allegations supporting the existence

of a plausible disparity between members and non-members of a protected group. As a threshold

matter, it does not offer any factual allegations supporting the proposition that in addition to

Brown, other employees of Defendants who qualified as “personnel” covered by Section 2.61

opposed the COVID-19 vaccination requirement on religious grounds and were terminated from

their positions for failure to comply with Defendants’ vaccine policy. The Amended Complaint

simply does not identify a single person other than Brown who allegedly falls into this category,

much less provide any statistics about the size of this asserted group. See e.g., Muslim v.

Sagamore Child.’s Psychiatric Ctr., No. 22-cv-07850, 2024 WL 3431959, at *8 (E.D.N.Y. July

15, 2024) (finding that a complaint failed to allege the existence of a disparity between Muslim

applicants and non-Muslim applicants for the purposes of a Title VII disparate impact claim

because the complaint did “not allege that there were any Muslim applicants aside from

[plaintiff] for the Office Assistant I position or any other position”) (emphasis supplied). The

Amended Complaint’s allegation that “[t]hose who religiously oppose the COVID-19

vaccination were unable to continue working due to the Vaccine Mandate” is conclusory and

unsupported by any supporting factual allegations. (Am. Compl. ¶ 72.)

Second, the Amended Complaint offers nothing other than conclusory allegations

concerning a causal relationship between the challenged employment policy and the asserted (but

unsupported) existence of a disparity. (See Am. Compl. ¶ 66 (“The Defendants’ Vaccine

Mandate caused a disparate impact on the basis of religion.”).) Such conclusory allegations are

not taken to be true. Hamilton, 3 F.4th at 91. Devoid of any supporting factual allegations, such

as statistics that “plausibly suggest that the challenged practice actually has a disparate impact,”

the Amended Complaint fails “[t]o nudge [the] disparate impact claim across the line from

conceivable to plausible . . . .” Mandala at 209–10.

For all of these reasons, the Amended Complaint fails to plausibly allege a Title VII

religious discrimination claim based on disparate impact.16

16 Defendants raise two additional arguments in opposition to Brown’s Title VII disparate impact

claim. First, Defendants argue that the Amended Complaint alleges that Defendants’ policy

affects a group of persons that share a single common belief—their “religious[] oppos[ition to]

the COVID-19 vaccination”—rather than a particular religious group. (Defs.’ Mem. at 15.)

Second, Defendants argue that their vaccine requirement was a business necessity. Id. at 16; see

42 U.S.C. § 2000e-2(k)(A)(1). Because I have found that the Amended Complaint fails to allege

a Title VII disparate impact claim, I do not reach these arguments.

C. NYSHRL Claims

Defendants argue that the Amended Complaint has failed to plead a plausible claim under

the NYSHRL for many of the same substantive reasons that it has failed to plead a Title VII

claim. (See e.g., Defs.’ Mem. at 4–13.)

A district court “may decline to exercise supplemental jurisdiction over a claim [where it]

has dismissed all claims over which it has original jurisdiction . . . .” 28 U.S.C. § 1367(c)(3). “In

the usual case in which all federal-law claims are eliminated before trial, the balance of factors

will point toward declining to exercise jurisdiction over the remaining state-law claims.”

Chinniah v. FERC, 62 F.4th 700, 703 (2d Cir. 2023).

Here, the Amended Complaint fails to state any federal claims and the federal claims are

therefore dismissed. See supra Discussion Section III(B). The Amended Complaint does not

assert any independent basis for jurisdiction over Brown’s NYSHRL claims, such as diversity

jurisdiction under 28 U.S.C. § 1332(a). (See Am. Compl. ¶¶ 12–13.)17 Because this case is in the

early stages of litigation, I decline to exercise supplemental jurisdiction over Brown’s claims

under the NYSHRL. Tang v. Grossman, No. 22-464, 2023 WL 2229366, at *3 (2d Cir. Feb. 27,

17 Nor does the Amended Complaint demonstrate that there is complete diversity between the

parties as required for this Court to exercise jurisdiction under 28 U.S.C. § 1332(a). The

Amended Complaint alleges that Brown “resides in the State of New York,” that South Shore is

a New York organization with a principal place of business in New York, and that Northwell

Health is a New York corporation. (Am. Compl. ¶¶ 10–11.) These allegations are deficient in

several respects. First, they fail to establish Brown’s citizenship because they concern only his

residence, and it is well-established that allegations of “residence alone [are] insufficient to

establish domicile for jurisdictional purposes.” Van Buskirk v. United Grp. of Cos., Inc., 935

F.3d 49, 53 (2d Cir. 2019); accord RainMakers Partners LLC v. NewSpring Cap., LLC, No. 23-

899, 2024 WL 1846321, at *2 n.1 (2d Cir. Apr. 29, 2024); Canouse v. Protext Mobility, Inc., No.

22-1335, 2023 WL 3490915, at *1 (2d Cir. May 17, 2023). Second, the allegations do not

address Northwell Health’s principal place of business, which is required to establish its

citizenship as a corporation. Bayerische Landesbank v. Aladdin Cap. Mgmt. LLC, 692 F.3d 42,

48 (2d Cir. 2012). Thus, the Court cannot conclude that Brown’s citizenship is diverse from that

of all Defendants as required for jurisdiction under 28 U.S.C. § 1332(a).

2023); Klein & Co. Futures, Inc. v. Bd. Of Trade of City of New York, 464 F.3d at 262 (2d Cir.

2006); see also Haczynska, 2024 WL 3178639, at *14 (declining to exercise supplemental

jurisdiction over NYSHRL claim after dismissing plaintiff’s Title VII religious discrimination

claim due to failure to comply with hospital’s vaccination requirement and collecting similar

cases).

CONCLUSION

For the reasons addressed above, Defendants’ Motion to Dismiss (ECF No. 15) is granted

in its entirety. The Amended Complaint’s claims for injunctive and declaratory relief are

dismissed without prejudice for lack of Article III standing. The Amended Complaint’s Title VII

religious discrimination claim for damages on the basis of disparate impact is dismissed with

prejudice because Brown has abandoned this claim, and in the alternative, because the Amended

Complaint fails to plausibly allege this claim under Rule 12(b)(6). The Amended Complaint’s

Title VII religious discrimination claims for damages on the basis of disparate treatment and

failure to accommodate are dismissed with prejudice under Rule 12(b)(6) for failure to state a

claim. Under 28 U.S.C. § 1367(c)(3), I decline to exercise supplemental jurisdiction over the

Amended Complaint’s claims for religious discrimination under the NYSHRL, and those claims

are therefore dismissed without prejudice.

The Amended Complaint is dismissed. The Clerk of Court shall enter judgment and close

this case.

Dated: Central Islip, New York

January 10, 2025

/s/ Nusrat J. Choudhury

NUSRAT J. CHOUDHURY

United States District Judge