Fugelsang v. The Department of Education of New York City

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CHRISTOPHER FUGELSANG,

Plaintiff,

MEMORANDUM AND ORDER

-against-

23-cv-08332 (LDH) (LKE)

THE DEPARTMENT OF EDUCATION OF NEW

YORK CITY,

Defendant.

LASHANN DEARCY HALL, United States District Judge:

Christopher Fugelsang (“Plaintiff”), proceeding pro se, brings claims against the

Department of Education of the City of New York (“DOE” or “Defendant”), pursuant to Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981 and § 1983, the New York

State Human Rights Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”),

and New York common law. Specifically, Plaintiff asserts claims for religious discrimination

and infringements on his freedom of speech, his freedom of religion, and his right to due process.

Defendant moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss

the complaint in its entirety.

BACKGROUND1

Plaintiff, a practicing Catholic, began working for Defendant as a teacher in 2009.

(Compl. ¶¶ 17, 19, ECF No. 1.) By 2012, Plaintiff earned a tenured position as a special

1 The following facts are taken from the complaint, documents attached to and incorporated by reference into the

complaint, and public documents of which the Court takes judicial notice. See Leonard F. v. Israel Disc. Bank of New

York, 199 F.3d 99, 107 (2d Cir. 1999) (holding that when ruling on a Rule 12(b)(6) motion to dismiss, the Court

“confine[s] its consideration to facts stated on the face of the complaint, in documents appended to the complaint or

incorporated in the complaint by reference, and to matters of which judicial notice may be taken.”); Chambers v. Time

Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (“Even where a document is not incorporated by reference, the court

education teacher. (Id. ¶¶ 15, 18.) In March 2020, New York City, along with dozens of cities

across the nation, implemented various mandatory citywide precautions in response to the

deadly, highly contagious COVID-19 virus.2 In August 2021, the Food and Drug Administration

approved the first vaccine designed to fight COVID-19.3 Shortly thereafter, Defendant

mandated that all its employees show proof that they began the COVID-19 vaccination process

by September 2021. (See id. ¶ 19; Compl. Ex. C, at 3.) Any employee who failed to comply

with this new requirement would be refused entry to DOE premises, would not be paid, and

risked termination. (See Compl. ¶ 20; Compl. Ex. C, at 3.) Citing his Catholic faith, Plaintiff did

not receive a COVID-19 vaccination. (Compl. ¶ 19.) As a result, Defendant informed Plaintiff

that if he did not receive a vaccination by October 1, 2021, he would be placed on leave without

pay, which would deprive him of his salary and benefits. (Id. ¶ 20.)

On October 24, 2021, Plaintiff sent a letter to Defendant detailing the merits of his faith-

based objections to the COVID-19 vaccine and requesting that he be afforded a religious

exemption. (Compl. Ex. B.) Although the complaint does not specify exactly when, Plaintiff’s

request was denied by Defendant, and his appeal of that decision was subsequently denied by an

independent arbitrator. (See Compl. ¶¶ 21, 23.) When Plaintiff sought review of those denials

by the City of New York Reasonable Accommodations Appeals Panel (the “Citywide Panel”),

may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document

integral to the complaint.”). These facts are assumed to be true for the purpose of this memorandum and order, unless

otherwise indicated.

2 The Court takes judicial notice of facts regarding the spread and lethality of COVID-19 as reported by dependable

public health authorities. See Joffe v. King & Spalding LLP, No. 17-CV-3392, 2020 WL 3453452, at *7 n.9

(S.D.N.Y. June 24, 2020) (collecting cases).

3 See FDA Approves First COVID-19 Vaccine, U.S. Food & Drug Admin., https://www.fda.gov/news-events/press-

announcements/fda-approves-first-covid-19-

vaccine#:~:text=Today%2C%20the%20U.S.%20Food%20and,years%20of%20age%20and%20older. (dated Aug.

23, 2021).

Plaintiff’s exemption request was once again denied on March 7, 2022. (Compl. ¶ 24; Compl.

Ex. H.) The Citywide Panel rested its decision on two considerations. First, the Citywide Panel

observed that Plaintiff “ha[d] failed to establish a sincerely held religious belief that preclude[d]

vaccination.” (Compl. Ex. H.) Second, it explained that “DOE ha[d] demonstrated that it would

be an undue hardship to grant accommodation to [Plaintiff] given the need for a safe

environment for in-person learning.” (Id.) Just over a week later, on March 17, 2022, Defendant

terminated Plaintiff. (Id. ¶ 25; Compl. Ex. I.)

STANDARD OF REVIEW

To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure

12(b)(6), a complaint must plead “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). A court deciding whether to grant a motion to dismiss must “draw all

reasonable inferences in [the plaintiff's] favor, assume all ‘well-pleaded factual allegations’ to be

true, and ‘determine whether they plausibly give rise to an entitlement to relief.’” Faber v.

Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (quoting Selevan v. N.Y. Thruway Auth.,

584 F.3d 82, 88 (2d Cir. 2009)) (internal citation omitted). “[T]he tenet that a court must accept

a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action’s

elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. Further, a court is

not obligated to accept a plaintiff’s “conclusory allegations or legal conclusions masquerading as

factual conclusions.” Faber, 648 F.3d at 104 (quoting Rolon v. Henneman, 517 F.3d 140, 149

(2d Cir. 2008)).

Moreover, where, as here, a plaintiff is proceeding pro se, his pleadings “must be

construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v.

Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474 (2d Cir. 2006)). A pro se complaint, “however inartfully pleaded, must be

held to less stringent standards than formal pleadings drafted by lawyers.” Boykin v. KeyCorp,

521 F.3d 202, 213–14 (2d Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127

(2007) (per curiam)). This rule is “particularly so when the pro se plaintiff alleges that [his] civil

rights have been violated.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.

2008) (citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). Still,

“even pro se plaintiffs asserting civil right claims cannot withstand a motion to dismiss unless

their pleadings contain factual allegations sufficient to raise a ‘right to relief above the

speculative level.’” Jackson v. NYS Dep’t of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y.

2010) (quoting Twombly, 550 U.S. at 555).

DISCUSSION

I. Employment Discrimination Claims

A. Title VII

1. Religious Discrimination

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 USA, Inc. v. Hochul, 17 F.4th 266, 291 (2d Cir.), opinion clarified, 17 F.4th 368 (2d Cir.

2021) (quoting 42 U.S.C. § 2000e-2(a)(1)) (internal quotation marks omitted). A plaintiff pleads

a sufficient 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) (citation and internal quotation marks omitted).

Defendant argues that Plaintiff’s religious discrimination claim is ripe for dismissal

because he fails to allege that his termination was motivated by discriminatory intent. (Mem. L.

in Supp. Def.’s Mot. to Dismiss (“Def.’s Mem”) at 12–13, ECF No. 15.) The Court agrees. It is

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

circumstances, such as “the employer’s criticism of the plaintiff’s performance in [] degrading

terms; or its invidious comments about others in the employee’s protected group; or the more

favorable treatment of employees not in the protected group; or the sequence of events leading to

the plaintiff’s discharge.” Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015)

(quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)) (internal quotation marks

omitted); see also Freckleton v. Ambulnz NY LLC, No. 21-CV-4615, 2022 WL 4644673, at *4

(E.D.N.Y. Sept. 30, 2022). Plaintiff alleges nothing of the sort. That is, Plaintiff does not allege

that he was terminated because of his Catholic religion. Rather, he asserts that he was fired for

failing to receive a mandatory COVID-19 vaccination after Defendant denied his request for a

religious exemption. (Compl. ¶¶ 20, 24–25.) The directive to receive a COVID-19 vaccination,

even according to Plaintiff, applied to all DOE employees. (See id. ¶ 20.) Plaintiff does not

explain how he was singled out for differential treatment on account of his religious beliefs.

Thus, Plaintiff has failed to state a claim for religious discrimination. See Famiglietti v. New

York City Dep’t of Sanitation, No. 23-CV-2754, 2024 WL 4606817, at *4 (E.D.N.Y. Oct. 28,

2024) (dismissing religious discrimination claim where “Plaintiff explicitly state[d] that he was

terminated for not complying with the COVID-19 Vaccine Mandate, which was a condition of

employment imposed across the private and public sector given the public health emergency

presented by the coronavirus pandemic.” (cleaned up)).

2. Failure to Accommodate

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

religious practice of [its] 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) (quoting 42

U.S.C. § 2000e(j)). To state a claim for failure to accommodate in violation of Title VII, a

plaintiff must allege that he “(1) [] held a bona fide religious belief conflicting with an

employment requirement; (2) [] informed [his] employer[] of this belief; and (3) [] w[as]

disciplined for failure to comply with the conflicting employment requirement.” Baker v. Home

Depot, 445 F.3d 541, 546 (2d. Cir. 2006) (citation and internal quotation marks omitted). Once

the employee establishes a prima facie case, the employer “must offer [him] 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) (citation omitted). A religious accommodation

is deemed to pose an undue hardship if it is substantial in the overall context of an employer’s

business. Groff, 600 U.S. at 468. “’A reasonable accommodation can never involve the

elimination of an essential function of a job,’ and ‘a court must give considerable deference to an

employer’s judgment regarding what functions are essential for service in a particular position.’”

Russo v. Patchogue-Medford Sch. Dist., No. 22-CV-01569, 2024 WL 149131, at *5 (E.D.N.Y.

Jan. 12, 2024), aff'd, 129 F.4th 182 (2d Cir. 2025) (quoting Tafolla v. Heilig, 80 F.4th 111, 119

(2d Cir. 2023)) (internal alterations omitted). An undue hardship defense “may be raised in a

pre-answer motion to dismiss under Rule 12(b)(6) . . . if the defense appears on the face of the

complaint.” Iowa Pub. Emps.’ Ret. Sys. v. MF Glob., Ltd., 620 F.3d 137, 145 (2d Cir. 2010)

(citation and internal quotation marks omitted).

Defendant argues that Plaintiff’s failure to accommodate claim fails because it “could not

have accommodated Plaintiff without suffering an undue hardship.” (Def.’s Mem. at 7.) That is,

Defendant contends that, given Plaintiff’s role as a special education teacher, his non-compliance

with the vaccine mandate would have posed an unjustifiable risk to the student population, who

at the time did not have access to COVID-19 vaccines. (Def.’s Mem. at 9-10.) The Court

agrees.

Even assuming Plaintiff has established a prima facie case that Defendant failed to

accommodate his religious exemption request, any such showing is overcome by Defendant’s

undue hardship defense. Indeed, the hardship that the presence of unvaccinated employees

would pose for the DOE has been well-documented by courts in this circuit. See, e.g., Beickert

v. New York City Dep’t of Educ., No. 22-CV-5265, 2023 WL 6214236, at *5 (E.D.N.Y. Sept. 25,

2023) (finding that DOE teacher’s unvaccinated presence would have posed an undue hardship);

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

that DOE’s vaccine mandate helped to “prevent[] transmission of the COVID-19 virus and

protect[ed] students.”); Dennison v. Bon Secours Charity Health Sys. Med. Grp., P.C., No. 22-

CV-2929, 2023 WL 3467143, at *6 n.7 (S.D.N.Y. May 15, 2023) (finding an “obvious

hardship associated with the increased health and safety risk posed to other employees” by

allowing plaintiffs to remain at their worksite unvaccinated against COVID-19). As to COVID-

19 vaccine mandates, the Second Circuit has made clear that “Title VII does not require covered

entities to provide the accommodation that [p]laintiffs prefer” nor does it allow a “blanket

religious exemption allowing them to continue working at their current positions unvaccinated”

against COVID-19. We the Patriots, 17 F.4th at 292. That is especially true of teachers who

instruct in classrooms of children with special needs because those children require “specially

designed instruction and related services.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356,

363 (2d Cir. 2006). And Plaintiff himself concedes his close working relationship with his

students. (See Compl. Ex. B, at 4 (explaining that in his classroom, he “aim[s] to create

relationships and bonds with students”).)

In a nearly identical lawsuit filed against the DOE by a special education classroom

teacher, the court determined that “[e]ven if [the plaintiff] took precautions such as wearing

gloves, masks, and a face shield, her presence as an unvaccinated individual would have

presented a risk to the vulnerable and still primarily unvaccinated student population and other

employees.” Beickert, 2023 WL 6214236 at *5 (citation and internal quotation marks omitted).

Taking judicial notice that “the DOE’s [v]accine [m]andate helped to prevent transmission of the

COVID-19 virus and protected students,” id. (quoting Broecker, 573 F. Supp.3d at 891) (internal

quotation marks and alterations omitted), the court held that the plaintiff’s “unvaccinated

presence would have imposed ‘substantial increased costs in relation to the conduct of [the

DOE’s] particular business’ by creating a health and safety risk that would have prevented the

DOE from fostering a safe educational and work environment when COVID-19 vaccines had

become available,” id. (quoting Groff, 600 U.S. at 470) (alterations in original). So too here.

Accordingly, even at this early stage, Defendant clearly would be able to establish an undue

hardship warranting dismissal of Plaintiff’s Title VII claims.

B. Selective Enforcement Claim

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 state an Equal Protection claim based on

a theory of selective enforcement, a plaintiff must plausibly allege that he was treated differently

from others similarly situated based on impermissible considerations, such as race, religion, or

the exercise of a constitutional right. Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d

Cir. 2007) (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, 2014 WL 1155282, at

*5 (E.D.N.Y. Mar. 20, 2014) (citation omitted).

Defendant argues that Plaintiff’s selective enforcement claim must be dismissed because

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

(Def.’s Mem. at 12–14.) The Court agrees. Plaintiff does not include a single allegation that he

was treated differently than others who were similarly situated. “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.” Famiglietti, 2024 WL

4606817, at *3. Setting aside Plaintiff’s failure to include allegations of similarly situated

persons in his complaint, Plaintiff asserts in his opposition that “school delivery people and

school bus drivers were allowed to work without getting vaccinated during the worst of the

pandemic.” (Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 23, ECF No. 15-10.)

Plaintiff adds that “[t]his makes no sense except that Mayor [Eric] Adams helped groups to

which he owed favors, or was particularly interested in, and did not help tenured teachers. This is

selective enforcement.” (Id.) But this theory undermines Plaintiff’s allegation of selective

enforcement. Indeed, by Plaintiff’s logic, the reason that he did not receive an accommodation is

because, as a teacher, he was not a member of one of the mayor’s favored groups—not because

he holds certain religious beliefs. It is, thus, reasonable for the Court to infer from Plaintiff’s

argument that “it was not the substance of [P]laintiff’s stated religious beliefs that resulted in his

request being denied.” Mora v. New York State Unified Ct. Sys., No. 22-CV-10322, 2023 WL

6126486, at *14 (S.D.N.Y. Sept. 19, 2023).

II. First Amendment Claim4

The Free Exercise Clause of the First Amendment “protects an individual’s private right

to religious belief, as well as ‘the performance of (or abstention from) physical acts that

constitute the free exercise of religion.’” Kane v. DeBlasio, 19 F.4th 152, 163–64 (2d Cir. 2021)

(citation omitted). The protection “does not relieve an individual of the obligation to comply

with a valid and neutral law of general applicability.” Slattery v. Hochul, 61 F.4th 278, 292 (2d

Cir. 2023) (citation and internal quotation marks omitted). “A law may not be neutral if it

explicitly singles out a religious practice,” or if it “targets religious conduct for distinctive

treatment.” We The Patriots, 17 F.4th at 281 (citation omitted). Likewise, a law may not be

“generally applicable” if it either “invites the government to consider the particular reasons for a

person’s conduct by providing a mechanism for individualized exemptions,” or “if it prohibits

religious conduct while permitting secular conduct that undermines the government’s asserted

4Although Plaintiff’s complaint does not allege a First Amendment retaliation claim, Plaintiff asserts that he

“engaged in speech protected by the First Amendment, namely discussing his religious beliefs, that he suffered an

adverse employment action, and that a causal connection between the two existed.” (Pl.’s Opp’n at 24.) Plaintiff

does not allege a single fact that would support the notion that he was terminated for engaging in religious speech.

To the contrary, the complaint plainly alleges that Plaintiff was terminated for failing to comply with the vaccine

mandate for which he was denied a religious exemption. (See Compl. ¶¶ 20, 25.)

interests in a similar way.” Fulton v. City of Philadelphia, 593 U.S. 522, 523, 534 (2021). A

neutral law of general applicability is evaluated under a rational basis review, but policies or

laws that are not neutral or generally applicable are subject to strict scrutiny and must be

narrowly tailored to serve a compelling state interest. Kane, 19 F.4th at 164.

Defendants argue that the vaccine mandate is a neutral law of general applicability, and

that Plaintiff has not alleged any facts that would support an inference that the mandate targeted

specific religious conduct for distinctive treatment. (Def.’s Mem. at 15.) Applying rational basis

review, Defendant argues that its vaccine mandate was rationally related to the government’s

interest in stopping the spread of COVID-19. (Id.) The Court agrees.

Notably, the Second Circuit has already found the DOE vaccine mandate at issue facially

neutral and generally applicable. Kane, 19 F.4th at 164. As a matter of law, therefore, the

vaccine mandate “does not single out employees who decline vaccination on religious

grounds,” id., and it “applies to an entire class of people”—“DOE employees and other

comparable employees.” Id. at 166. Because DOE’s vaccine mandate is neutral and generally

applicable, there only needs to be a “rational basis” for its enforcement. Fifth Ave. Presbyterian

Church v. City of New York, 293 F.3d 570, 574 (2d Cir. 2002). Here, the “DOE clearly

explained that ‘a system of vaccination for individuals working in school settings, including

DOE buildings and charter school buildings, will potentially save lives, protect public health, and

promote public safety’”—a “rational, and indeed, compelling basis.” Bonilla v. City of New

York, No. 22-CV-7113, 2023 WL 8372859, at *4 (S.D.N.Y. Dec. 4, 2023) (citation omitted).

III. Due Process Claims

A. Procedural Due Process

The Due Process Clause of the Fourteenth Amendment requires that, generally, a person

must be afforded the opportunity for a hearing prior to being deprived of a constitutionally

protected liberty or property interest. U.S. Const. amend XIV, § 1. To state a claim that a

defendant’s actions violated a plaintiff’s Fourteenth Amendment right to procedural due process,

the plaintiff must establish that he (1) possessed a protected property or liberty interest and (2)

faced a deprivation of that interest without constitutionally adequate process. O’Connor v.

Pierson, 426 F.3d 187, 197 (2d Cir. 2005). Pre-deprivation processes “need not be elaborate,”

and the Constitution “mandates only that such process include, at a minimum, notice and the

opportunity to respond.” Id. at 198 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

545 (1985)). Defendant argues that Plaintiff’s procedural due process claim must be dismissed

because Plaintiff fails to sufficiently allege that he was denied constitutionally adequate process

in connection with his termination. (Def.’s Mem at 18.) The Court agrees.

Plaintiff alleges that he was terminated in March 2022 “without proper notice [or] a due

process hearing.” (Compl. ¶ 19.) But according to the complaint, Defendant ensured that

Plaintiff was well aware that termination was a potential consequence of failure to comply with

the vaccine mandate. Indeed, Plaintiff acknowledges that in August 2021, six months before his

termination, Defendant advised employees that, by September 2021, they would need to furnish

proof that they had begun COVID-19 vaccination protocols. (Id. ¶ 19.) The mandate, which

Plaintiff attached to the complaint, noted that any employee who failed to comply would be

refused entry to DOE premises, would not be paid, and risked termination. (Compl. Ex. C, at 3).

And on September 28, 2021, because Plaintiff had not submitted any such proof, Defendant sent

him a reminder, also attached to the complaint, that if he did not do so by October 1, 2021 he

would be placed on leave without pay, which would deprive him of his salary and benefits. (Id.

¶ 20; Compl., Ex. D.) Thus, Plaintiff’s assertion that he did not receive proper notice of

termination is entirely undermined by the allegations in his complaint and the attachments

thereto.

As to “the opportunity to respond,” Plaintiff appears to fixate on the fact that he did not

receive a hearing. (See id. ¶¶ 3, 19, 25.) But “the opportunity to respond need not be a formal

hearing.” Ezekwo v. New York City Health & Hosps. Corp., 940 F.2d 775, 786 (2d Cir. 1991).

Indeed, the ability to submit a request for exemption from a mandate before any consequences

are imposed is an adequate opportunity to be heard. See Garland v. City of New York, 665 F.

Supp. 3d 295, 307 (E.D.N.Y. 2023) (finding that the opportunity to respond was sufficient where

“FDNY employee[s] who challenged whether the [v]accine [m]andate should apply to them had

the opportunity to seek a religious or medical accommodation” and “were not suspended without

pay” if they submitted the request before a certain deadline). Here, Defendant maintained an

online portal through which employees could submit requests demonstrating that they satisfied

the criteria for exemptions. (Compl. Ex. C, at 6–13.) If Defendant denied a request, the

employees could submit an appeal, including supplemental documentation, to an independent

arbitrator. (Id. at 10.) And employees who submitted timely requests were not subject to

deprivation of employment or any benefits pending review of their requests or appeals. (Id. at 7–

10.) According to the complaint, Plaintiff fully availed himself of this opportunity. Indeed, on

October 24, 2021, Plaintiff submitted a letter to Defendant detailing his faith-based objections to

the vaccine and requesting a religious exemption. (Compl. Ex. B.) And when his request was

denied, he submitted an appeal, which an independent arbitrator reviewed and denied. (See

Compl. ¶ 23.) That Plaintiff did not physically appear before a tribunal to petition for an

exemption does not mean that he was not afforded an opportunity to be heard. Because Plaintiff

was provided notice that he would be terminated for failure to comply with the vaccine mandate

and received an opportunity to be heard before his termination, he was afforded constitutionally

adequate process. Therefore, Plaintiff’s procedural due process claim must be dismissed.

B. Substantive Due Process

The Fourteenth Amendment Due Process Clause guarantees “more than fair process”; it

“cover[s] a substantive sphere as well, barring certain government actions regardless of the

fairness of the procedures used to implement them.” Cnty. of Sacramento v. Lewis, 523 U.S.

833, 840, (1998) (internal quotation marks and citations omitted). “Substantive due process

rights safeguard persons against the government’s exercise of power without any reasonable

justification in the service of a legitimate governmental objective.” Southerland v. City of New

York, 680 F.3d 127, 151 (2d Cir. 2012) (internal quotation marks and citation omitted). To

analyze a claim under substantive due process, courts perform a two-step analysis. Hurd v.

Fredenburgh, 984 F.3d 1075, 1087 (2d Cir. 2021). First, the court must identify the

constitutional right at stake. Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995).

Then, the court must analyze whether the state action “was so egregious, so outrageous, that it

may fairly be said to shock the contemporary conscience.” Southerland, 680 F.3d at 151–52.

Defendant argues that the Court must dismiss Plaintiff’s substantive due process claim because

Plaintiff fails to identify any constitutional right at stake. (Def.’s Mem. at 18.) The Court

agrees.

Plaintiff makes passing references to a denial of substantive due process stemming from

the termination of tenured position. (Compl. ¶¶ 2, 8, 18.) That is, Plaintiff asserts

“[c]onstitutional rights, including protected liberty and property rights, to his position.” (Id. ¶ 8.)

The weight of authority forecloses this claim. Generally, property interests related to

employment are not among protected fundamental rights. Walker v. City of Waterbury, 361 F.

App’x 163, 165 (2d Cir. 2010) (summary order) (quotations omitted). Neither is there a

fundamental right to continued public employment. Maniscalco v. New York City Dep’t of

Educ., 563 F. Supp. 3d 33, 39 (E.D.N.Y. 2021), aff’d, No. 21-2343, 2021 WL 4814767 (2d Cir.

Oct. 15, 2021) (citation omitted).

Even if the Court agreed that Plaintiff’s rights to pursue his profession or to continued

employment were fundamental rights, Plaintiff’s arguments still fail at the second step of the

analysis. Here, plaintiffs “must demonstrate that the state action was so egregious, so

outrageous, that it may fairly be said to shock the contemporary conscience” such that the Due

Process Clause “would not countenance it even were it accompanied by full procedural

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

cannot meet that burden.

In Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), the Supreme Court

held that Massachusetts’s compulsory vaccination law did not violate Fourteenth Amendment

substantive due process rights because the mandate was within the State’s police power. See

also Zucht v. King, 260 U.S. 174, 176 (1922) (“Jacobson ... settled that it is within the police

power of a state to provide for compulsory vaccination”). The Second Circuit and the Supreme

Court “have consistently recognized that the Constitution embodies no fundamental right that in

and of itself would render vaccine requirements imposed in the public interest, in the face of a

public health emergency, unconstitutional.” We The Patriots USA, Inc. v. Hochul, 17 F.4th at

293 (2d Cir.) Thus, even if Plaintiff maintained a constitutional right in his employment with

Defendant, Defendant’s decision to terminate him consistent with its vaccination policy was a

constitutional condition of employment. Accordingly, Plaintiff’s substantive due process claim

must also fail.

C. “Stigma Plus” Claim

The Due Process Clause protects against a person’s loss of reputation when that loss is

associated with the deprivation of a federally protected liberty interest. Bd. of Regents v. Roth,

408 U.S. 564 (1972); Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994). Accordingly, the

Second Circuit has determined that a stigma – that is, the loss of one’s good reputation – may

amount to a constitutionally recognized deprivation of liberty without due process if a plaintiff

“allege[s] (1) the utterance of a statement . . . that is injurious to [his] reputation, that is capable

of being proved false . . . and (2) some tangible and material state-imposed burden . . . in

addition to the stigmatizing statement.” Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005). Thus, to

state a so-called “stigma plus” claim, “[t]he defamatory statement must be sufficiently public to

create or threaten a stigma.” Id. (internal quotation marks and citations omitted). Defendant

argues that Plaintiff fails to state a stigma plus claim because he does not allege that any false or

stigmatizing statement about him was publicly disclosed. (Def.’s Mem at 26.) The Court agrees.

Plaintiff claims that his placement on Defendant’s internal Problem Code without a

hearing amounts to a stigma plus violation under the Due Process Clause. (Compl. ¶¶ 2, 56.)

According to the complaint, Plaintiff’s placement on the Problem Code’s “no hire” list

“permanently stigmatizes” him as an employee who has been charged with misconduct. (Id. ¶

5.) Therefore, Plaintiff argues, Defendant owed him a hearing before imposing the designation.

(Id.) Not so. Courts in this circuit have consistently held that allegations regarding placement on

DOE’s problem code database, even without a “name-clearing hearing,” are insufficient to state

a stigma plus claim where no statement about the plaintiff was published outside of the agency.

See Green, 2019 WL 3432306, at *10–11 (dismissing plaintiff’s procedural due process claim

where plaintiff was flagged with a “no hire code” and placed on the “Problem Code” or

“Ineligible Inquiry List”); Adams v. New York State Educ. Dep’t, 752 F. Supp. 2d 420, 454

(S.D.N.Y. 2010), aff’d sub nom. Ebewo v. Fairman, 460 F. App’x 67 (2d Cir. 2012) (dismissing

plaintiffs’ argument that the DOE deprived them of a constitutionally protected property or

liberty right by placing them on the “‘Ineligibility/Inquiry’ List”); Arroyo v. Dep’t of Educ. of

City of New York, No. 19-cv-7416, 2020 WL 4570380, at *14 (S.D.N.Y. Aug. 6, 2020) (same).

Here, the complaint is devoid of any allegations that Defendant shared any information regarding

Plaintiff’s placement in the Problem Code outside of DOE. Indeed, Plaintiff only alleges that the

designation was reflected as a flag on his personnel file within the department. (Compl. ¶ 30.)

Plaintiff cannot successfully claim that Defendant’s records threatened his reputation if they

were never made public. See Velez v. Levy, 401 F.3d at 87 (2d Cir. 2005). Accordingly,

Plaintiff’s stigma plus claim must also be dismissed.

IV. State Law Claims

Defendant also moves to dismiss Plaintiff’s NYSHRL, NYCHRL, and state law fraud in

the inducement claims. Because the Court has granted Defendants’ motion to dismiss as to

Plaintiff’s federal claims, it “decline[s] to exercise supplemental jurisdiction” over Plaintiff’s

state law claims [because] “it ‘has dismissed all claims over which it has original jurisdiction’.”

Kolari v. N.Y. Presbyterian Hosp., 455 F. 3d 118, 121–22 (2d Cir. 2006) (quoting 28 U.S.C. §

1367(c)(3) (“If the federal law claims are dismissed before trial . . . the state claims should be

dismissed as well.”).

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss the complaint is GRANTED.

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

March 31, 2025 LASHANN DEARCY HALL

United States District Judge