Berger

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

SVETLANA BERGER,

Plaintiffs,

-versus- MEMORANDUM AND ORDER

Case No. 1:24-CV-8550 (FB) (JRC)

BROOKDALE UNIVERSITY HOSPITAL AND

MEDICAL CENTER,

Defendant.

Appearances:

For the Plaintiff: For the Defendant:

RACHEL DREHER MARIANNE MONROY

RONALD D. COLEMAN VASILIOS D. LOLIS

Coleman Law Firm, PC Garfunkkel Wild, P.C.

50 Park Place 900 Steward Ave., 4th Floor

Ste 1105 Garden City, NY 11530

Newark, NJ 07102

NICOLE CRISTINE PEARSON

Facts Law Truth Justice, Apc

5319 University Drive

Ste 503

Irvine, CA 92612

BLOCK, Senior District Judge:

Svetlana Berger (“Plaintiff” or “Berger”) claims that her former employer, Brookdale

University Hospital and Medical Center (“Brookdale”) discriminated and retaliated against her

on the basis of her religion in violation of Title VII of the Civil Rights Act of 1964 and the New

York State Human Rights Law (“NYSHRL”). Plaintiff claims that her position was unlawfully

terminated after she refused the COVID-19 vaccine because of her religious beliefs.

Alternatively, she claims that she was entitled to an accommodation of fully remote work.

Brookdale moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). For the following reasons the motions are granted.

Background

Plaintiff began working as a social worker at Brookdale in May 2011. Compl., ¶ 10, ECF

No. 1. Plaintiff identifies as a Modern-Orthodox Jew. Id. at ¶ 15. Early in her employment, she

was granted a reasonable accommodation for her religious beliefs permitting her to not work

during the Sabbath. Id. at ¶ 11.

In August 2021, as a response to the COVID-19 pandemic, the New York State

Department of Health (“DOH”) implemented a regulation, 10 N.Y.C.R.R. § 2.61 (the “State

Mandate”), requiring covered health care employers to ensure that their patient- and staff-facing

workers were fully vaccinated against COVID-19. On September 6, 2021, Brookdale informed

Plaintiff that she fell within the category of employees covered by the State Mandate and that she

was required to be vaccinated if she was to continue working with patients. Id. at ¶ 13. Plaintiff

filed a religious accommodation request, which Brookdale denied. Id. at ¶¶ 15–23. When

Plaintiff failed to submit proof of vaccination, Brookdale placed her on unpaid leave on

December 18, 2021, and subsequently terminated her on December 31, 2021. Id. at ¶¶ 24–30.

After her termination Plaintiff initiated two actions. First, she applied for unemployment

insurance; second, she filed a Charge of Discrimination with the EEOC and the New York State

Division of Human Rights (“DHR”). Id. at ¶ 7.

Plaintiff’s unemployment insurance benefits claim was processed by the New York

Department of Labor (“DOL”). Her claim was initially denied, and after a series of re-hearings,

the Unemployment Insurance Appeals Board ( “Appeals Board”) determined that Plaintiff’s

refusal to undergo vaccination was not tied to her religious beliefs but rather rooted in her

concern over the “safety of the newly developed vaccine, and the lack of research and data about

its long-term effects.” Appeals Board Decision, p. 5, ECF No. 30-3. Based on this determination

her application for unemployment benefits was denied. The Appeals Board’s decision is not

before the Court.

In response to her Charge of Discrimination, the EEOC issued a right-to-sue letter to

Plaintiff. Id. at ¶ 8. The DHR separately investigated Plaintiff’s Charge of Discrimination and

issued an order determining that there was “no probable cause to believe that [Brookdale]

engaged in . . . the unlawful discriminatory practice complained of.” DHR Order, 1, ECF No. 30-

6. With her EEOC right-to-sue letter in hand, Plaintiff properly initiated this action. Compl., ¶ 9.

Legal Standards

To survive a 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). A claim is facially

plausible when it “pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

The pleading must offer more than “bare assertions,” “conclusory” allegations, and a “formulaic

recitation of the elements of a cause of action.” Id. Courts should “draw all reasonable inferences

in a 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).

“A plaintiff asserting subject matter jurisdiction has the burden of proving by a

preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d

Cir. 2000). “If the court determines at any time that it lacks subject-matter jurisdiction, the court

must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

Furthermore, “on a Rule 12(b) motion to dismiss” the court may “consider matters of

which judicial notice may be taken.’” Staehr v. Hartford Fin. Servs. Group, Inc., 547 F.3d 406,

425 (2d Cir. 2008) (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991)).

Judicial notice may be taken of matters that are “(1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to

sources whose accuracy cannot reasonably be questioned.” Int’l Star Class Yacht Racing Ass’n v.

Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998) (quoting Fed. R. Evid. 201(b)). The

Court may also “take judicial notice of the records of state administrative procedures, as these

are public records, without converting a motion to dismiss to one for summary judgment.”

Johnson v. Cnty. of Nassau, 411 F. Supp. 2d 171, 178 (E.D.N.Y. 2006).

As an initial matter, the Court must decide what weight to give the prior findings of the

Appeals Board and the DHR. In general, the Supreme Court has counseled that “when a state

agency acting in a judicial capacity resolves disputed issues of fact properly before it which the

parties have had an adequate opportunity to litigate, federal courts must give the agency's

factfinding the same preclusive effect to which it would be entitled in the State's courts.”

University of Tennessee v. Elliott, 478 U.S. 788, 799, 106 S. Ct. 3220, 92 L. Ed. 2d 635 (1986)

(internal quotation omitted).

New York law forbids Appeals Board findings from “preclud[ing] the litigation of any

issue of fact or law in any subsequent action.” N.Y. Lab. Law § 623; Pollard v. N.Y. Methodist

Hosp., 861 F.3d 374, 382 (2d Cir. 2017) (“[U]nemployment insurance decisions do not have

preclusive effect in subsequent litigation.”). Nor should DHR determinations be preclusive. See

Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 736 (2d Cir. 2001) (concluding

that if—as here—there was no discovery, and if the complainant was acting pro se in the original

hearing, collaterally estopped should not be a bar from relitigating issues previously raised

before the DHR). Nonetheless, under Title VII they are accorded “substantial weight.” See 42

U.S.C. § 2000e-5(b).

Analysis

Plaintiff asserts two claims, first, religious discrimination in violation of the NYSHRL,

N.Y. Exec. Law § 296(1)(a), (10)(a), and second, religious discrimination in violation of Title

VII, 42 U.S.C. §§ 2000e et seq.. Defendants move to dismiss the NYSHR claim pursuant to

12(b)(1), and to dismiss the Title VII claim under 12(b)(6).

I. NYSHRL Claim

The Court first addresses the NYSHRL jurisdictional issue under Fed. R. Civ. P. 12(b)(1)

since “if [the Court] must dismiss the complaint for lack of subject matter jurisdiction, the

[defendants’] defenses and objections become moot and do not need to be determined.” Daly v.

Citigroup Inc., 939 F.3d 415, 426 (2d Cir. 2019) (internal quotation marks omitted). Brookdale

argues that Plaintiff’s state law claim under the NYSHRL is barred by the statute’s election of

remedies provision. “Under [this] provision[], once a claim is dismissed by the [DHR], the

complainant is generally foreclosed from seeking redress elsewhere and can only appeal to the

Supreme Court of the State of New York.” Deberry v. Brookdale Univ. Hosp. & Med. Ctr., 11 F.

Supp. 3d 387, 392 (E.D.N.Y. 2014). “[B]y electing to proceed along the administrative route, the

complainant creates an ‘insuperable jurisdictional bar’ to subsequent federal judicial review of

these claims.” Id. (quoting Moodie v. Fed. Reserve Bank of New York, 58 F.3d 879, 882-84 (2d

Cir. 1995)).

This is what happened here. Berger chose to file her NYSHRL claim with the DHR and

the DHR determined that the claim lacked merit. See DHR Order. Thus, the Court lacks

jurisdiction over this claim and it must be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). See

Shearon v. Comfort Tech Mech. Co., Inc., 936 F. Supp. 2d 143, 157 (E.D.N.Y. 2013) (dismissal

under election of remedies bar is done pursuant Fed. R. Civ. P. 12(b)(1) rather than 12(b)(6)).

II. Title VII Claim

Although claims of religious discrimination are evaluated under the three-part burden

shifting analysis set forth by the Supreme Court in McDonnell Douglas Corporation v. Green,

411 U.S. 792 (1973), this framework is inapplicable on a 12(b)(6) motion to dismiss.

Szuszkiewicz v. JPMorgan Chase Bank, 12 F. Supp. 3d 330, 343 (E.D.N.Y. 2014) (citing

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S. Ct. 992, 997 (2002) (“This Court has

never indicated that the requirements for establishing a prima facie case under McDonnell

Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a

motion to dismiss.”). There is no heightened pleading standard for discrimination claims, rather

“the facts alleged in the complaint must provide ‘plausible support to the reduced requirements’

of a prima facie case.” Mears v. Allstate Indem. Co., 336 F. Supp. 3d 141, 149 (E.D.N.Y. 2018)

(quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)).

The Court liberally construes the Complaint as raising two claims, one for religious

discrimination; the other for failure to accommodate.

A. Religious Discrimination

To establish a prima facie case of religious discrimination under Title VII a plaintiff must

show that: (1) she belongs to a protected class; (2) she was qualified for the position at issue; (3)

she suffered an adverse employment action; and (4) the adverse employment action occurred

under circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

The Complaint adequately pleads that Plaintiff is in a protected class and suffered an

adverse employment action. However, because she refused to abide by the State Mandate and

refused to be vaccinated for COVID-19 she was not qualified for her position, and she was

lawfully terminated.

To be qualified for a position, an employee must satisfy all criteria required by the

employer. 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, 144 S. Ct. 967, 218 L. Ed. 2d 322

(2024)). The Second Circuit has recognized that under the State Mandate "vaccination is a

condition of employment in the healthcare field." We The Patriots v. Hochul, 17 F.4th 266, 294

(2d Cir. 2021); see also Kane v. de Blasio, 623 F. Supp. 3d 339, 363 (S.D.N.Y. 2022) (collecting

cases). Accordingly, courts in our Circuit have consistently held that where healthcare workers

refuse to be vaccinated after their employer makes vaccination a condition of employment, they

are no longer qualified for their position. See Greene v. Northwell Health Inc., No. 2:23-cv-4846

(NJC) (LGD), 2024 U.S. Dist. LEXIS 173767, at *32 (E.D.N.Y. Sep. 25, 2024); Haczynska v.

Mount Sinai Health Sys., Inc., No. 23-cv-3091, 738 F. Supp. 3d 300, 2024 U.S. Dist. LEXIS

112830, 2024 WL 3178639, *11 n.15 (E.D.N.Y. June 26, 2024); Lake v. HealthAlliance Hosp.

Broadway Campus, No. 22-cv-656, 2024 U.S. Dist. LEXIS 114031, 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).

Plaintiff’s challenge to the validity of the State Mandate is unavailing. In We The Patriots

USA, Inc. v. Hochul, the Second Circuit held that the State Mandate was lawful, and that “if a

medically eligible employee’s work assignments mean that she qualifies as ‘personnel,’ she is

covered by the [State Mandate] and her employer must ‘continuously require’ that she is

vaccinated against COVID-19.” 17 F.4th 368, 370 (2d Cir. 2021) (quoting 10 N.Y.C.R.R. § 2.61).

Since the State Mandate was lawful and in force at the time of Plaintiff’s termination, she

was not qualified for her position, and she fails to establish a prima facie case of religious

discrimination. Thus, Defendant’s 12(b)(6) motion is granted as to this aspect of Plaintiff’s Title

VII claim.

B. Failure to Accommodate

“Title VII of the Civil Rights Act of 1964 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 v. DeJoy, 600 U.S. 447, 453-54, 143 S. Ct. 2279,

2286 (2023) (quoting 78 Stat. 253, as amended, 42 U. S. C. §2000e(j)).

Even though the Second Circuit upheld the lawfulness of the State Mandate in We The

Patriots USA, Inc., it recognized that the Mandate “does not bar an employer from providing an

employee with a reasonable accommodation that removes the individual from the scope of the

Rule.” 17 F.4th 368, 370. Thus, the question is whether Brookdale could have granted Plaintiff’s

requested accommodation of fully-remote work or if this would have imposed a separate undue

hardship on the Hospital.

Courts in this Circuit have repeatedly held that requiring an employer to create a fully-

remote position where one did not previously exist imposes an undue hardship on the employer.

Brown v. S. Shore Univ. Hosp., 762 F. Supp. 3d 191 (E.D.N.Y. 2025) (“To the extent that

Defendants could have accommodated [Plaintiff’s] alleged religious belief by placing [her] in a

remote position, courts in this Circuit have found that such an accommodation would result in an

undue hardship on hospital defendants . . . because such employers would have to hire another

employee to perform an employee’s in-person duties.”); Greene, 2024 U.S. Dist. LEXIS 173767,

at *45 (E.D.N.Y. Sep. 25, 2024); Conde v. Mid Hudson Reg'l Hosp. Med. Ctr., No. 22-v-3085,

2024 U.S. Dist. LEXIS 8658, 2024 WL 168282, at *8 (S.D.N.Y. Jan. 12, 2024).

Relevant here, two administrative hearings found that Plaintiff’s position could not be

performed remotely. The DHR investigation determined that Plaintiff’s “job could not be

performed fully remotely as her responsibilities required her to provide in-person patient care

functions.” DHR Order, 2. The State Unemployment Insurance Appeals Board made an identical

finding. Appeals Board Decision, p. 4 (“The department determined that as the claimant’s

position was ‘patient facing,’ she could not perform the functions of her job remotely.”) While

these administrative agency decisions do not have preclusive effect, the Court nonetheless gives

them “substantial weight” in determining the reasonableness of Plaintiff’s proposed

accommodation. 42 U. S. C. § 2000e-5(b).

Plaintiff contends that because the Complaint states that Brookdale “allowed her to work

remotely throughout her employment” she satisfies the liberal pleading standard set out in

Twombly and Iqbal. See Compl. ¶ 12. However, the Complaint only asserts that Plaintiff was

allowed to work remotely as part of her Sabbath observation. See id. ¶¶ 11–12. The Court

interprets this to mean that Plaintiff was able to work remotely insofar as it was necessary to

permit her observance of the Sabbath, e.g. perhaps by working from home on Fridays so that she

would not need to drive home after sunset. This is a far cry from her requested accommodation

to be allowed to fully work remotely.

Plaintiff’s accommodation was denied because of the State Mandate and because the job

required in-person patient care duties. Her proposed accommodation was unreasonable because it

would have imposed an undue hardship on Brookdale. Accordingly, Plaintiff fails to state a claim

for failure to accommodate under Title VII.

Conclusion

Plaintiff’s NYSHRL claims are dismissed for lack of jurisdiction pursuant to Fed. R. Civ.

P. 12(b)(1). As for her Title VII claims, they are dismissed as a matter of law because she was

terminated for a legitimate reason and there was no reasonable accommodation that could have

been granted without imposing an undue hardship on her employer. Accordingly, Defendant’s

motions are GRANTED.

SO ORDERED.

_/S/ Frederic Block____________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

July 14, 2026