The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
WENDY TRUDO,
Plaintiff,
v. MEMORANDUM & ORDER
25-CV-01345 (HG)
THE DEPARTMENT OF EDUCATION OF
THE CITY OF NEW YORK; MELISSA
AVILES-RAMOS, Chancellor; KATHERINE
RODI, Director of Employee Relations,
Defendants.
HECTOR GONZALEZ, United States District Judge:
Pro se Plaintiff Wendy Trudo initiated this action against Defendants Department of
Education of the City of New York (“DOE”); the DOE Chancellor, Melissa Aviles-Ramos; and
the DOE Director of Employee Relations, Katherine Rodi (together, “Individual Defendants”).
See ECF No. 15 (Amended Complaint; “AC”).1 Plaintiff brings claims under 42 U.S.C. § 1983,
alleging violations of her First, Fifth, and Fourteenth Amendment rights and related violations of
New York State law that stem from Defendants’ denial of her request for a religious exemption
from the COVID-19 vaccine mandate and their subsequent termination of her employment after
her failure to comply with the mandate. See id. Defendants move to dismiss the Amended
Complaint for improper service on Individual Defendants under Rule 12(b)(5) and for failure to
state a claim under Rule 12(b)(6). See ECF No. 21 (Motion to Dismiss; “Mot.”). For the reasons
set forth below, Defendants’ Rule 12(b)(6) motion is GRANTED.
1 Unless otherwise indicated, when quoting cases and the parties’ papers, the Court omits
all internal quotation marks, alteration marks, emphases, footnotes, and citations. The Court
refers to the pages assigned by the Electronic Case Files system (“ECF”).
BACKGROUND2
I. Factual Background
In March 2006, Plaintiff began working for the DOE as an occupational therapist. AC
¶ 9. On March 12, 2020, then-Mayor Bill de Blasio issued Emergency Executive Order No. 98,
declaring a state of emergency in New York City because of the COVID-19 pandemic. See id.
¶ 17. In response, the DOE closed all schools within its jurisdiction in New York City, and
Plaintiff began a hybrid work schedule, on which she remained until September 2021. See id.
In July 2021, Mayor de Blasio announced a “Vaccine-or-Test” mandate, which required
New York City workers, including United Federation of Teachers (“UFT”) educators, to be
vaccinated against COVID-19 or test weekly. See ECF No. 16 at 5 (Plaintiff’s Exhibits 1–12).
On August 23, 2021, Mayor de Blasio and NYC Commissioner of Health and Mental Hygiene,
David Chokshi, announced a new “Vaccine Only” mandate requiring those working in NYC
DOE buildings to show that they had started the vaccination protocol by September 27, 2021 (the
“Vaccine Mandate”). See id. Failure to comply meant those employees would not be allowed
inside DOE buildings, would not be paid for work, and would risk losing their jobs and benefits.
See id. The Vaccine Mandate did not expressly provide for medical or religious exceptions or
2 The Court “recite[s] the substance of the allegations as if they represented true facts, with
the understanding that these are not findings of the [C]ourt, as [I] have no way of knowing at this
stage what are the true facts.” In re Hain Celestial Grp., Inc. Sec. Litig., 20 F.4th 131, 133 (2d
Cir. 2021). Because Plaintiff is proceeding pro se, the Court will consider “the factual
allegations set forth in the original Complaint [and] the Amended Complaint . . . as well as their
respective attachments.” Sander v. Enerco Grp., Inc., No. 21-cv-10684, 2023 WL 1779691, at
*4 (S.D.N.Y. Feb. 6, 2023). And although the general rule is that a plaintiff may not raise new
allegations in her opposition to a motion to dismiss, because Plaintiff is representing herself, the
Court will grant her some leeway by considering both the allegations in the Amended Complaint
and Plaintiff’s Opposition in deciding the motion. See Walker v. Schult, 717 F.3d 119, 122 n.1
(2d Cir. 2013) (“A district court deciding a motion to dismiss may consider factual allegations
made by a pro se party in his papers opposing the motion.”).
accommodations, nor did it address “matters of due process with regard to job and benefits
protection.” Id. at 5.
On September 1, 2021, the UFT filed a Declaration of Impasse with the Public
Employment Relations Board (“PERB”) concerning the Vaccine Mandate. See id. at 6. Martin
Scheinman of Scheinman Arbitration and Mediation Services (“SAMS”) then presided over an
arbitration between the Board of Education of the City School District of the City of New York
and UFT, after which he issued an arbitration award on September 10, 2021 (the “Arbitration
Award”). See AC ¶ 20; ECF No. 16 at 1–20. The Arbitration Award established: (i) a process
for exemptions, accommodation requests, and appeals, ECF No. 16 at 8–15; (ii) a leave without
pay (“LWOP”) system for employees who did not request, or were denied, an exemption, but
would continue to receive health insurance, id. at 15–18; (iii) a provision for employees on
LWOP to extend or separate from the DOE and receive benefits, id. at 18–19; and lastly, (iv) a
provision providing for a “unilateral separation” process for employees who failed to comply
with the Vaccine Mandate and did not avail themselves of any other provisions of the Arbitration
Award, id. at 19–20. Plaintiff acknowledges that the Arbitration Award “ordered all NYC DOE
employees to get vaccinated by October 1, 2021, submit a valid vaccination card to the [DOE] by
October 4, 2021, or be removed from salary immediately.” AC ¶ 21. Plaintiff did not get the
COVID-19 vaccine because her “sincerely held religious beliefs . . . forbade her” from doing so.
Id. ¶ 54
On September 15, 2021, the Department of Health amended the Vaccine Mandate and
added a reasonable accommodations provision.3 See ECF No. 16 at 27. Two days later, Plaintiff
3 Specifically, the provision provides that “[n]othing in this Order shall be construed to
prohibit any reasonable accommodations otherwise required by law.” ECF No. 16 at 27.
applied for a religious accommodation exempting her from the Vaccine Mandate. See AC ¶ 23.
In her letter in support of her request, Plaintiff wrote that “[she] is a Christian who follows God’s
Holy word, [she is] exercising [her] right to receive religious exemption from the COVID
vaccinations. The contents of the vaccines . . . strongly conflict with [her] sincerely held
religious beliefs. [She] cannot betray God’s Holy word.” ECF No. 16 at 30. On September 19,
2021, the DOE denied Plaintiff’s request due to an “undue hardship” on the DOE and its
operations, which she appealed immediately. See AC ¶ 24; ECF No. 16 at 32. On September
26, 2021, Plaintiff took part in a virtual appeal hearing, at which she explained why her
“sincerely held religious beliefs” prevented her from receiving the COVID-19 vaccination. AC
¶ 27. The DOE denied her appeal the next day. Id. ¶ 28. On October 1, 2021, Plaintiff received
an email informing her that she was officially on a LWOP and could not enter any school
building or engage in conversation with students or parents unless she received and uploaded
proof of vaccination. Id. ¶ 29.
On November 28, 2021, the Second Circuit issued its opinion in Kane v. De Blasio,
19 F.4th 152 (2d Cir. 2021), in which it ordered that “Plaintiffs shall receive fresh consideration
of their requests for a religious accommodation by a central citywide panel [(‘Citywide Appeal
Panel’)]” and that such reconsideration “shall adhere to the standards established by Title VII of
the Civil Rights Act of 1964, the [New York State Human Rights Law (“NYSHRL”)], and the
[New York City Human Rights Law (“NYCHRL”)]” rather than “the challenged criteria set forth
in” the Arbitration Award. See ECF No. 16 at 37 (attaching Kane, 19 F.4th 152); AC ¶ 30.
On December 3, 2021, Plaintiff was permitted to reapply for a religious exemption
accommodation with the Citywide Appeal Panel. AC ¶ 32. She uploaded additional documents
explaining her religious beliefs and, upon request from the Citywide Appeal Panel, answered
four additional questions concerning those beliefs. Id. ¶ 32–33, 35. The Citywide Appeal Panel
denied Plaintiff’s appeal on March 7, 2022, finding that “DOE has demonstrated that it would be
an undue hardship to grant this accommodation . . . given the need for a safe environment for in-
person learning.” Id. ¶ 36. On March 17, 2022, DOE issued a letter notifying Plaintiff that she
was officially terminated from her employment due to non-compliance with the Vaccine
Mandate. Id. ¶ 37.
One week later, on March 24, 2022, the City issued Emergency Executive Order No. 62,
which permitted athletes, performing artists, and others to remain unvaccinated while continuing
to work. AC ¶ 38. On April 28, 2022, Plaintiff became aware that the DOE planned to place a
“problem code” in the personnel file of “any person who applied for a religious exemption from
the COVID-19 vaccine.” Id. ¶ 39; see also ECF No. 16 at 50. The problem code would prevent
“her from obtaining any employment opportunities in New York City in public or private
schools.” AC ¶ 39. Defendants did not provide Plaintiff with a hearing on the charges brought
against her. Id. ¶ 40.
II. Procedural History
On March 13, 2025, Plaintiff filed a pro se complaint against the DOE and Individual
Defendants. See ECF No. 1. Plaintiff then sought leave to amend her original complaint on
September 29, 2025, see ECF No. 14, which she filed on November 3, 2025. See AC.
The Amended Complaint puts forth five causes of action: (i) “[S]ection 1983 unlawful
retaliation and discrimination while acting under color of law in violation of NYSHRL and
NYCHRL”4; (ii) failure to accommodate Plaintiff’s religious beliefs; (iii) violation of the
4 The Court understands this first cause of action to be six separate claims: two Section
1983 claims, two New York State law claim, and two New York City law claims.
Fourteenth Amendment equal protection clause; (iv) violation of the substantive due process
clauses of the Fifth and Fourteenth Amendments; and (v) violation of the Free Exercise and
Establishment Clauses of the First Amendment.5 See generally AC. Beyond her five
enumerated causes of action, Plaintiff further alleges that Defendants violated New York City
Administrative Code Title 8 and New York Civil Service Laws 75-b and 77. See id. ¶¶ 1, 50.
On December 17, 2025, Defendants filed their motion to dismiss, see Mot., and a
memorandum in support of their motion to dismiss, see ECF No. 22 (Defendants’ Memorandum
in Support of Motion to Dismiss; “Mem.”). About one month later, Plaintiffs filed an
opposition. See ECF No. 25 (Plaintiff’s Opposition; “Opp.”). On February 13, 2026,
Defendants filed their reply. See ECF No. 29 (Defendants’ Reply; “Reply”).
LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(5)
The Court may exercise personal jurisdiction over a defendant only if service of process
was procedurally proper. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50,
59 (2d Cir. 2012). Under Rule 12(b)(5), a defendant may “challeng[e] the mode of delivery or
lack of delivery of the summons and complaint.” Liu v. Garland, No. 23-cv-1132, 2024
WL 2941850, at *1 (E.D.N.Y. June 11, 2024). A plaintiff faced with a Rule 12(b)(5) motion
bears the burden of establishing that service was sufficient. Khan v. Khan, 360 F. App’x 202,
203 (2d Cir. 2010).
5 Plaintiff’s fifth cause of action is only for “Violation of the Free Exercise Clause,” but
contained in the factual allegations thereunder is a claim that Defendants also violated the
Establishment Clause of the First Amendment. See AC ¶ 82.
B. Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), a “complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Sacerdote
v. N.Y. Univ., 9 F.4th 95, 106 (2d Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “A claim is plausibly alleged ‘when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”
Matzell v. Annucci, 64 F.4th 425, 433 (2d Cir. 2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). In making this assessment, the Court “must accept as true all of the factual
allegations set out in plaintiff’s complaint, draw inferences from those allegations in the light
most favorable to plaintiff, and construe the complaint liberally.” Roth v. Jennings, 489 F.3d
499, 510 (2d Cir. 2007). The Court must, however, disregard any “conclusory allegations, such
as formulaic recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678. A pleading
that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Id.
C. Pro Se Plaintiff
A pro se complaint “must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The Court’s obligation “to
construe a pro se complaint liberally” continues to apply “[e]ven after Twombly” established the
plausibility standard for assessing pleadings. Newsome v. Bogan, 795 F. App’x 72, 72 (2d Cir.
2020). “A pro se litigant, however, is not exempt ‘from compliance with relevant rules of
procedural and substantive law.’” Ramos-Nunez v. United States, No. 14-102, 2019 WL
1300811, at *4 (S.D.N.Y. Mar. 21, 2019) (quoting Traguth v. Zuck, 710 F.2d 90, 96 (2d Cir.
1983)). This includes the applicable rules of service. See Cassano v. Altshuler, 186 F. Supp. 3d
318, 321 (S.D.N.Y. 2016).
DISCUSSION
Defendants seek to dismiss the Amended Complaint in its entirety on both procedural and
substantive grounds. First, Individual Defendants challenge the sufficiency of service and move
to dismiss all claims against them for improper service. See Mem. at 17–18. Second, all
Defendants argue that the NYSHRL and NYCHRL claims fail to comply with the applicable
notice of claim requirements and are time barred. See id. at 19–21. Third, all Defendants argue
that Plaintiff’s constitutional and state law claims fail as a matter of law. See id. at 21–43.
Because Plaintiff’s claims fail as a matter of law, the Court need not address Defendants’ other
arguments in dismissing the Amended Complaint.
I. Federal Claims6
A. Religious Discrimination
Plaintiff brings two claims for religious discrimination under Section 1983: (1) a claim
for disparate treatment and (2) a claim based on a failure to accommodate. Claims brought under
Section 1983 are analyzed using the same basic elements as those used for claims brought under
Title VII. See Naumovski v. Norris, 934 F.3d 200, 212 (2d Cir. 2019).
i. Disparate Treatment
To state a claim for employment discrimination based on disparate treatment under
Section 1983, Plaintiff must plead that she (1) “is a member of a protected class,” (2) “was
qualified” for the position, (3) “suffered an adverse employment action,” and (4) “has at least
minimal support for the proposition that the employer was motivated by discriminatory intent.”
6 On each issue except retaliation and substantive due process, see infra Parts I.B.i and
I.C.ii, the Court adopts the legal framework and analysis in Judge Donnelly’s decision in Parrino
v. Dep’t of Educ. of City of New York, No. 24-cv-8892, 2026 WL 407507 (E.D.N.Y. Feb. 13,
2026).
Hurley v. Dep’t of Educ. of City of New York, No. 24-cv-1664, 2025 WL 2711471, at *4
(E.D.N.Y. Sept. 23, 2025) (quoting Buon v. Spindler, 65 F.4th 64, 79 (2d Cir. 2023)).
Defendants argue that Plaintiff “fails to ‘ple[a]d any facts that show that her discharge was
motivated by discriminatory intent, nor that suggest the employer’s desire to avoid providing an
accommodation was a motivating factor in its decision to terminate her.’” Mem. at 25 (quoting
Hurley, 2025 WL 2711461, at *4). Plaintiff does not meaningfully address this argument but
instead asserts that she “does not have to present evidence of disparate treatment given to her
rather than others at the pleading stage[.]” Opp. at 4.
The COVID-19 vaccine mandate was “a lawful condition of employment.” Broecker v.
New York City Dep’t of Educ., 585 F. Supp. 3d 299, 316 (E.D.N.Y. 2022), aff’d, No. 23-655,
2023 WL 7485465 (2d Cir. Nov. 13, 2023), and aff’d, No. 23-655, 2023 WL 8888588 (2d Cir.
Dec. 26, 2023). Thus, once the mandate went into effect and Plaintiff refused to get the vaccine,
she was no longer qualified for her position. See Brown v. S. Shore Univ. Hosp., 762 F. Supp. 3d
191, 207 (E.D.N.Y. 2025) (“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.”); Tandian v. State Univ. of
New York, 698 F. Supp. 3d 425, 439 (N.D.N.Y. 2023) (“[T]o be qualified for her position as a
Teaching and Research Center Nurse 2, Plaintiff must have been vaccinated against COVID-19
or received a medical exemption; it is undisputed that she did neither.”). Plaintiff’s claim thus
fails to meet the second element.
“In cases alleging religious discrimination based on disparate treatment, a plaintiff may
plausibly plead facts that give rise to an inference of unlawful discrimination where the plaintiff
alleges that they ‘actually require[] an accommodation of [a] religious practice, and the
employer’s desire to avoid the prospective accommodation is a motivating factor in [its]
decision.’” Hurley, 2025 WL 2711471, at *4 (quoting E.E.O.C. v. Abercrombie & Fitch Stores,
Inc., 575 U.S. 768, 773–74 (2015)). Plaintiff has not alleged any facts that show “her discharge
was motivated by discriminatory intent” or that Defendants’ “desire to avoid providing an
accommodation was a motivating factor in its decision to terminate her.” Id. Although Plaintiff
makes the conclusory allegation that Defendants “discriminated against [her] on the basis of her
religious beliefs,” AC ¶ 57, the Amended Complaint makes clear that her employment was
terminated, and her personnel file was tagged with a problem code, because she refused to get
the COVID-19 vaccine. See AC ¶¶ 37, 39. She also acknowledges that other employees were
“granted accommodations,” see AC ¶ 43, which “cuts against any reasonable inference that
Defendant[s] terminated Plaintiff or others out of a reluctance to provide a religious
accommodation.” Hurley, 2025 WL 2711471, at *5. For these reasons, Plaintiff does not state a
claim for religious discrimination under a theory of disparate treatment.
ii. Failure to Accommodate
“‘To survive a motion to dismiss, a plaintiff asserting a Title VII religious-discrimination
claim’ based on a failure to accommodate ‘must plausibly allege that (1) [she] held a bona fide
religious belief conflicting with an employment requirement; (2) [she] informed [her] employers
of this belief; and (3) [she] [was] disciplined for failure to comply with the conflicting
employment requirement.’” Hurley, 2025 WL 2711471, at *5 (quoting D’Cunha v. Northwell
Health Sys., No. 23-cv-476, 2023 WL 7986441, at *2 (2d Cir. Nov. 17, 2023)). However, a
plaintiff’s claim fails if the defendant shows “that the prospective accommodation would cause
the employer to suffer an undue hardship.” Id.
Defendants do not contest any of the three elements but rather argue that the DOE would
have suffered undue hardship if it had granted Plaintiff’s accommodation request. See Mem. at
27. There is no dispute that Plaintiff held a bona fide religious belief conflicting with an
employment requirement, see AC ¶¶ 27, 35, 54; ECF No. 16 at 30, that she informed the DOE of
this belief, see AC ¶¶ 23, 27, or that she was disciplined for failure to comply, see AC ¶¶ 29, 37;
Hurley, 2025 WL 2711471, at *6 (Plaintiff’s “placement on leave without pay and her ultimate
termination from her position qualify as ‘discipline.’”). The only question, then, is whether the
DOE would have suffered undue hardship, as it claimed when the Citywide Appeal Panel
rejected Plaintiff’s appeal. See AC ¶ 36 (“[I]t would be an undue hardship to grant this
accommodation . . . given the need for a safe environment for in-person learning.”). Plaintiff
argues that Defendants’ “invocation of ‘undue hardship’ defenses are plainly false pretexts
attempting to cover for the Defendants’ explicit religious discrimination.” Id. ¶ 81. In
evaluating undue hardship, the Court notes that Plaintiff was not seeking an accommodation but
rather, a blanket exemption from the vaccination requirement. “[C]ourts have routinely found
that a full exemption from the COVID-19 vaccine would constitute an undue hardship for Title
VII religious accommodation claims.” Hurley, 2025 WL 2711471, at *7; see also 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) (“Even 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.”); Fugelsang v. Dep’t of Educ.
of New York City, No. 23-cv-8332, 2025 WL 974276, at *3 (E.D.N.Y. Mar. 31, 2025) (“[T]he
hardship that the presence of unvaccinated employees would pose for the DOE has been well-
documented by courts in this circuit.”).
Accordingly, Plaintiff's failure to accommodate claim is dismissed.
B. First Amendment Claims
i. Retaliation
Plaintiff next alleges that she was subject to “retaliation . . . on the basis of her religion.”
See AC ¶ 52. She claims that she “was flagged with the [problem] code and retaliated against
because of her sincere religious beliefs” and that Defendants then placed her on “suspension
without pay, denied her exemption requests and Appeals . . . and terminated her employment.”
Id. ¶¶ 79, 83. This conduct, according to Plaintiff, constituted retaliatory discrimination. Id.
¶ 84.
“[I]n order to survive a motion to dismiss a complaint, a plaintiff asserting First
Amendment retaliation claims must allege (1) that the speech or conduct at issue was protected,
(2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal
connection between the protected speech and the adverse action.” Davis v. Goord, 320 F.3d 346,
352 (2d Cir. 2003). Defendants address the first and third elements, arguing that Plaintiff “fails
to allege that [she] engaged in protected activity, that the DOE had knowledge of any protected
activity, or a causal connection between any protected activity and an alleged adverse
employment action.” Mem. at 30.
“[R]equesting religious accommodation constitutes a protected activity.” Billings v. New
York State Dep’t of Corr. & Cmty. Supervision, No. 19-cv-11796, 2021 WL 4150925, at *7
(S.D.N.Y. Sept. 10, 2021); see also Jenkins v. New York City Transit Auth., 646 F. Supp. 2d 464,
473 (S.D.N.Y. 2009) (“[A] claim for retaliation can be based upon a request for reasonable
accommodation.”). Defendants only contest whether requesting a religious accommodation may
qualify as a protected activity under the NYCHRL and NYSHRL, and do not dispute its
suitability for Section 1983 claims. See Mem. at 31. Because the Court dismisses Plaintiff’s
state and city claims on different grounds, see infra Part II, it need not address these arguments.
For purposes of her Section 1983 retaliation claim, requests for religious accommodation
constitute a protected activity.
Defendants next argue that Plaintiff fails to allege “that she engaged in protected activity
prior to any alleged adverse employment action” or “a causal connection between any protected
activity by Plaintiff and an adverse action.” See Mem. at 31–32. This argument undercuts the
first and third elements of a retaliation claim, but the Court focuses its attention only on the
element of causation. Causation may be established “by showing that protected activity was
close in time to the adverse action,” see Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009), and
requires that the protected conduct “was a substantial motivating factor in the adverse
employment action,” Smith v. Cnty. of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015). Plaintiff fails
to plead “a causal connection between the protected speech and the adverse action” and her
retaliation claim is therefore dismissed. See Goord, 320 F.3d at 352.
“[I]t is well-settled that an adverse employment action cannot serve as the basis for a
retaliation claim if the action was set in motion before a plaintiff engaged in protected activity.”
Piligian v. Icahn Sch. Of Med. At Mount Sinai, 490 F. Supp. 3d 707, 722 (S.D.N.Y. 2020); see
also Adams v. New York State Unified Ct. Sys., No. 22-cv-9739, 2023 WL 5003593, at *4
(S.D.N.Y. Aug. 4, 2023) (“Adams’s termination followed ineluctably from the policy that
Defendants announced before Adams applied for an exemption; it was neither personal to her nor
based on any protected activity. In other words, it was set in motion before she requested a
religious accommodation.” (emphasis in original)). Here, Plaintiff alleges that the Arbitration
Award was issued on September 10, 2021, and that DOE sent the agreement to “all NYC DOE
employees,” before she sought a religious accommodation on September 17, 2021. See AC
¶¶ 21, 23. After Plaintiff did not comply with the Vaccine Mandate, Defendants properly
enforced the policy and began the adverse actions. Because “it is an inescapable rule of causality
that a cause must precede its effect,” see Billhofer v. Flamel Techs., SA, 663 F. Supp. 2d 288,
297 (S.D.N.Y. 2009), Plaintiff fails to establish causation for her retaliation claim, see Adams,
2023 WL 5003593, at *4.
Moreover, Plaintiff fails to establish that her request for religious accommodation “was a
substantial motivating factor in the adverse employment action.” Smith, 776 F.3d at 118. To the
contrary, as Defendants note, Plaintiff alleges that the Vaccine Mandate “was ‘Defendants’
Citywide hoax to remove City workers from payroll . . . to retaliate and discriminate against
Plaintiff and similarly situated educators chosen randomly in order to remove expensive senior
employees such as Plaintiff from the City payroll.’” See Mem. at 31–32 (quoting AC ¶ 18).
Defendants say that this indicates Plaintiff was alleging that the “DOE implemented the [Vaccine
Mandate] for political, economic and/or budgetary reasons, rather than . . . [as] retaliation for a
protected activity.” Id. at 32. Moreover, as discussed previously, the Amended Complaint
makes clear that Plaintiff’s employment was terminated and her personnel file was tagged with a
problem code, because she refused to get the COVID-19 vaccine. See supra Part A.i. Plaintiff’s
own allegations therefore belie her contentions that Defendants acted with discriminatory animus
and causation is thus not satisfied.
Plaintiff's retaliation claim is dismissed.
ii. Free Exercise and Establishment Clause
Plaintiff next alleges that “Defendants’ discrimination against her violates the Free
Exercise and Establishment Clauses of the First Amendment[.]” AC ¶ 82. Defendants argue that
“Plaintiff’s First Amendment Free Exercise claim fails because [she] cannot show that
Defendants burdened a sincere religious practice pursuant to a policy that is not neutral or
generally applicable . . . or that the purpose of the Vaccine Mandate was the suppression of
religion or religious conduct.” Mem. at 41–42. As to Plaintiff’s Establishment Clause claim,
Defendants argue that the Amended Complaint “brings no Establishment Cause of action” but to
the extent one can be inferred, “Plaintiff fails to allege any facts that Defendants acted to prefer
one religion over another or with the purpose o[r] effect of advancing or inhibiting religion.” Id.
at 41 n.7. Plaintiff fails to plausibly allege either of her First Amendment claims.
“The Free Exercise Clause . . . 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.’” New Yorkers for Religious Liberty, Inc. v. City of New York, 125 F.4th 319, 330 (2d
Cir. 2025), cert. denied sub nom. Kane v. New York, NY, No. 25-126, 2025 WL 3620461 (U.S.
Dec. 15, 2025) (quoting Kane v. De Blasio, 19 F.4th 152, 163–64 (2d Cir. 2021)). “This
protection, however, does not relieve an individual of the obligation to comply with a valid and
neutral law of general applicability.” Id. “For purposes of a facial claim, a ‘law that is facially
neutral [may] still run afoul of the neutrality principle if it ‘targets religious conduct for
distinctive treatment.’” Id. Plaintiff alleges that Executive Order No. 62 shows that the Vaccine
Mandate “was not neutral, and did not have general applicability, but targeted City Agencies,
employees at the [DOE], and municipal workers.” AC ¶ 38. But the Second Circuit has
“previously determined that the City’s ‘Vaccine Mandate, in all its iterations, [wa]s neutral[,]
generally applicable,’ and facially constitutional under the Free Exercise Clause.” New Yorkers
for Religious Liberty, 125 F.4th at 330 (quoting Kane, 19 F.4th at 164). Nor would an as-applied
challenge survive, because the plaintiff has not alleged “more-than-conclusory allegation[s] that
the finding of undue hardship was erroneous or pretextual.” Id. at 333; see also Hurley, 2025
WL 2711471, at *12 (E.D.N.Y. Sept. 23, 2025) (finding where the plaintiff “on numerous
occasions refers to ‘undue hardship’ as the reason for the Citywide Panel’s denial of her appeal,”
“her pleading suggests that Defendant denied her exemption request ‘on the independent ground
of undue hardship’” (quoting New Yorkers for Religious Liberty, 125 F.4th at 335)). Plaintiff
thus fails to state a Free Exercise claim.
“The Establishment Clause prevents the enactment of laws that have the ‘purpose’ or
‘effect’ of ‘advancing or inhibiting religion.’” New Yorkers for Religious Liberty, 125 F.4th at
330 (quoting Agostini v. Felton, 521 U.S. 203, 222–23 (1997)). “Laws that ‘grant[] a
denominational preference’ by preferring one religion over another violate the Establishment
Clause, too.” Id. (quoting Larson v. Valente, 456 U.S. 228, 244–46 (1982)). Plaintiff makes the
conclusory allegation that Defendants “adopt[ed] a facially discriminatory religious
accommodation policy that conditioned an exemption on membership in a favored religion,” AC
¶ 20, without any further elaboration or support. Plaintiff thus fails to state an Establishment
Clause claim. See Lynch v. Dep’t of Educ. of City of New York, 822 F. Supp. 3d 258, 278
(E.D.N.Y 2026) (“[T]o the extent the Complaint raises a facial Establishment Clause challenge,
binding authority warrants its dismissal.”).
Plaintiff’s Free Exercise and Establishment Clause claims are therefore dismissed.
C. Fourteenth Amendment7
i. Procedural Due Process
Plaintiff alleges that she was “removed” from her job “unfairly and without due process.”
AC ¶ 48. The Court liberally construes this, and other passing references to Fourteenth
Amendment procedural due process violations, as alleging such a claim. “To determine whether
a plaintiff was deprived of property without due process of law in violation of the Fourteenth
Amendment, [a court] must first identify the property interest involved. Next, [it] must
determine whether the plaintiff received constitutionally adequate process in the course of the
deprivation.” Hurley, 2025 WL 2711471, at *10 (quoting O’Connor v. Pierson, 426 F.3d 187,
196 (2d Cir. 2005)). Despite “at will employees possess[ing] no protectable property interest in
continued employment,” Goetz v. Windsor Cent. Sch. Dist., 698 F.2d 606, 608 (2d Cir. 1983),
Defendants do not contest whether Plaintiff had a property interest, but rather argue that Plaintiff
“received more than adequate due process before her exception request was denied and DOE
terminated her employment,” Mem. at 37.
“Procedures provide constitutional due process where there is ‘a pre[-]termination
opportunity to respond, coupled with post-termination administrative procedures as provided by
[state] statute.’” Id. (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547–48
(1985)). “[T]he Constitution mandates only that such process include, at a minimum, notice and
7 Plaintiff also asserts that she is bringing Fifth Amendment equal protection and
substantive due process claims, see AC ¶¶ 68–71, but those claims are dismissed because they
may only be brought against federal actors, see Skelly v. I.N.S., 168 F.3d 88, 91 (2d Cir. 1999)
(“[T]here is a well-established equal protection component to the Fifth Amendment Due Process
Clause applicable to the federal government.”); DeMartino v. New York State Dep’t of Labor,
167 F. Supp. 3d 342, 357 n.8 (E.D.N.Y. 2016) (Fifth Amendment due process clause constrains
only actions of federal government); see also Gyadu v. Bainer, No. 19-cv-01120, 2021 WL
2073919, at *3 n.2 (D. Conn. May 24, 2021) (dismissing Fifth Amendment equal protection and
substantive due process claims where complaint made no mention of federal officials).
the opportunity to respond.” O’Connor, 426 F.3d at 198. Courts within the Second Circuit have
found the Vaccine Mandate, the process by which DOE employees received advance notice of
the Vaccine Mandate and of their ability to seek religious or medical exemptions and appeals,
and their subsequent placement on leave without pay or termination, coupled with the
availability of Article 78 proceedings as a post-deprivation remedy, did not violate procedural
due process. See, e.g., Broecker, 585 F. Supp. 3d at 313–14. Plaintiff’s allegations clearly show
that she received adequate due process: (1) DOE notified her of the Vaccine Mandate, AC ¶ 20;
(2) she applied for and received a decision on her religious exemption, id. ¶¶ 23–24; (3) she was
afforded a virtual appeal with an attorney, an official from the DOE, and a UFT representative
(which was denied), id. ¶¶ 26–28; and (4) she applied “for fresh reconsideration of a religious
exemption accommodation,” during which Plaintiff received and answered questions pertaining
to her religious beliefs, but her appeal was ultimately denied, id. ¶¶ 32–36. Only then was
Plaintiff terminated from her position. See id. ¶ 37. Moreover, Plaintiff's “ability to request the
exemption and appeal constituted an adequate pre-termination opportunity to respond, and her
ability to pursue Article 78 remedies satisfied the post-termination administrative procedures as
provided by state statute for her to have received due process.” Hurley, 2025 WL 2711471, at
*10; see also Broecker, 585 F. Supp. 3d at 314 (“Plaintiffs, having received multiple notices
regarding the Vaccination Mandate and after being notified of the applicable dates, procedures,
and consequences regarding continued noncompliance with the Vaccination Mandate, could still
have sought relief through an Article 78 proceeding in New York state court.”). Plaintiff has
given no indication as to whether she has sought relief through an Article 78 proceeding. See
Broecker, 585 F. Supp. 3d at 314. Plaintiff thus received adequate due process, and her
procedural due process claim is therefore dismissed.
The Court construes Plaintiff’s allegations about the “problem code,” see, e.g., AC ¶¶ 31,
40, 51, 84, as a “stigma plus claim,” see Hurley, 2025 WL 2711471, at *13 (in a “‘stigma plus
claim,’ . . . a plaintiff can argue that she suffered ‘injury to one’s reputation (the stigma) coupled
with the deprivation of some tangible interest or property right (the plus), without adequate
process.’”) (quoting Segal v. City of New York, 459 F.3d 207, 212 (2d Cir. 2006)). “A stigma
plus claim has three elements: (1) injury to reputation; (2) the deprivation of a tangible interest
or property right; and (3) a lack of adequate process.” Id. “A plaintiff generally is required only
to raise the falsity of these stigmatizing statements as an issue, not prove they are false.” Id.
(quoting Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004)). “The Second Circuit has
also stated that ‘[t]o prevail on a stigma plus claim, a plaintiff must show (1) the utterance of a
statement sufficiently derogatory to injure his or her reputation, that is capable of being proved
false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed
alteration of the plaintiff’s status or rights.’” Id. (quoting Sadallah v. City of Utica, 383 F.3d 34,
38 (2d Cir. 2004)).
Plaintiff cannot succeed on this claim because she does not dispute the reasons for the
issuance of the problem code: that she did not get the vaccination when it was mandated, and
then refused to get vaccinated. See, e.g., AC ¶¶ 27, 35, 54; ECF No. 16 at 30. Thus, the
“problem code” designation was not false, which “is fatal to Plaintiff’s stigma plus claim.”
Hurley, 2025 WL 2711471, at *14; see also Vesterman v. New York City Dep’t of Educ., No. 25-
cv-2731, 2026 WL 1580250, at *2 (2d Cir. June 3, 2026) (“[Plaintiff]’s stigma-plus claim fails
because she has not plausibly alleged that her problem code designation is anything other than an
accurate reflection of her noncompliance with the Vaccine Mandate.”).
Plaintiff’s procedural due process claims are dismissed.
ii. Substantive Due Process
Plaintiff next brings a substantive due process claim, alleging that she “has a fundamental
right to her sincere religious beliefs and to protect herself from bodily harm, and from her
life/employment being taken by the government” for non-compelling and invalid reasons. AC
¶ 70.8 Defendants argue that Plaintiff’s claim must be dismissed because she fails to allege that
the DOE infringed upon any fundamental right. See Mem. at 39. The Court agrees with
Defendants, as does the Second Circuit. See, e.g., We The Patriots USA, Inc. v. Hochul, 17 F.4th
266, 293 (2d Cir. 2021) (“Both this Court 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.”). Plaintiff’s substantive due process claim is thus dismissed.
iii. Equal Protection
Claiming an equal protection violation, Plaintiff asserts that “New York City was the
only location in New York State which mandated the vaccine or termination for public
employees” and that it “selectively enforc[ed] the mandate against unvaccinated City workers
like Plaintiff.” AC ¶¶ 62, 66. She cites a New York state court decision, Garvey v. City of New
8 In her Opposition, Plaintiff seems to allege a Fifth Amendment Takings Clause claim.
See Opp. at 7. “The Takings Clause of the Fifth Amendment, applicable to the States through
the Fourteenth Amendment, prohibits the government from taking private property for public use
without just compensation.” Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001). Even
assuming that Plaintiff’s at-will employment is a property interest in the context of a takings
claim, “this claim nevertheless fails, because the vaccine mandate [Plaintiff] challenge[s] did not
interfere with that right.” Baker-Pacius v. Dep’t of Educ. of the City of New York, No. 25-cv-
743, 2026 WL 693521, at *10 (E.D.N.Y. Mar. 12, 2026) (quoting McCartney v. City of New
York, No. 23-cv-8232, 2025 WL 2711429, at *6 (E.D.N.Y. Sept. 23, 2025)). “The fact that
Plaintiff[] chose not to receive the COVID-19 vaccine and as a consequence of that choice had
[her] employment with the City terminated does not transform the City’s mandate into a
regulatory taking.” Id. Plaintiff’s Takings Clause claim is therefore dismissed.
York, 180 N.Y.S.3d 476, 480 (N.Y. Sup. Ct., Oct. 24, 2022), in which the court opined that New
York City’s Executive Order No. 62 improperly “exempted certain employees” from the Vaccine
Mandate. See id. ¶ 61. Among these exempted employees were “various members of sports
teams, athletes, performing artists and others” who were permitted “to remain unvaccinated and
still do their work.” Id. ¶ 38. Defendants assert that Plaintiff’s equal protection claim fails
because she does not plausibly allege “that DOE provided selective treatment to any similarly
situated individuals of a different religion” or “that she was subjected to differential treatment as
compared to individuals who requested an exemption based on different religious beliefs” (i.e., a
comparator). Mem. at 34.
The Court construes Plaintiff’s claim as a selective enforcement claim. See Hurley, 2025
WL 2711471, at *8; AC ¶ 66. To state a selective enforcement claim, Plaintiff must allege a
comparator. See id. (describing two forms of selective enforcement claims, both of which
require a “degree of similarity between a plaintiff and a comparator”). Plaintiff fails to do so,
instead arguing that it is not suitable for resolution at this stage. See Opp. at 28–29 (citing Hu v.
City of New York, 927 F.3d 81, 92 (2d Cir. 2019)). However, the Court may “grant [a] motion[]
to dismiss where the complaint fail[s] to proffer sufficient facts regarding comparators to
plausibly support the contention the comparators were similarly situated to the plaintiff.” Minto
v. Molloy Coll., No. 16-cv-276, 2019 WL 4696287, at *9 (E.D.N.Y. Sept. 26, 2019). “To the
extent Plaintiff argues that athletes, performers, and other artists are comparators, they are not
materially similar to satisfy the comparator requirement.” Hurley, 2025 WL 2711471, at *9.
Next, Plaintiff’s references generally to “similarly situated employees,” see, e.g., AC ¶ 60, are
insufficient. See Rogers v. Roosevelt Union Free Sch. Dist., No. 09-cv-3862, 2012 WL 6163130,
at *9 n.13 (E.D.N.Y. Dec. 7, 2012) (“[G]eneral allegations of similarly situated individuals are
insufficient to establish that the individuals referenced are similarly situated in all material
respects.” (citing Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003))).
Plaintiff’s equal protection claim is therefore dismissed.
II. State and City Claims
Although district courts have supplemental jurisdiction over state-law claims “that are so
related to claims in the action within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States Constitution,” 28 U.S.C. § 1367(a),
such jurisdiction is discretionary, see City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156,
165 (1997). “[A] district court ‘may decline to exercise supplemental jurisdiction’ if it ‘has
dismissed all claims over which it has original jurisdiction.’” Kolari v. New York-Presbyterian
Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3)).
Having dismissed all of the federal claims over which it has original jurisdiction, the
Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining state and city law
claims: violations of the NYSHRL, the NYCHRL, the New York City Administrative Code, and
New York City Civil Service Laws. See Kolari, 455 F.3d at 123 (“Plaintiffs’ federal-law claims
were eliminated on a motion to dismiss, prior to the investment of significant judicial resources,
and we can discern no extraordinary inconvenience or inequity occasioned by permitting the
claims to be refiled in state court where they will be afforded a surer-footed reading of applicable
law.”).9 Since this case has progressed only to the motion to dismiss stage without the parties
conducting any discovery, applying the normal presumption against supplemental jurisdiction is
9 Because the Court dismisses all federal claims and declines to exercise supplemental
jurisdiction over state claims, the Court need not address the purported procedural deficiencies of
the state claims. See 28 U.S.C. § 1367(c)(3); see also Whiteside v. Hover-Davis, Inc., 995 F.3d
315, 319 (2d Cir. 2021).
appropriate. See Onibokun v. Chandler, 749 F. App’x 65, 67 (2d Cir. 2019) (“find[ing] no abuse
of discretion” in declining supplemental jurisdiction at motion to dismiss stage).
III. Leave to Amend
“A court should freely give leave [to amend] when justice so requires, but it may, in its
discretion, deny leave to amend for good reason, including futility, bad faith, undue delay, or
undue prejudice to the opposing party.” MSP Recovery Claims, Series LLC v. Hereford Ins. Co.,
66 F.4th 77, 90–91 (2d Cir. 2023) (affirming denial of leave to amend). When a pro se
complaint fails to state a cause of action, the court generally “should not dismiss without
granting leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000). However, an opportunity to amend is not required where, as here, “[t]he problem with
[Plaintiff’s] cause of action is substantive” such that “better pleading will not cure it.” Id. Thus,
where “granting leave to amend is unlikely to be productive . . . it is not an abuse of discretion to
deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
Here, the Court finds that leave to amend is unwarranted for two reasons. First, the
deficiencies in Plaintiff’s claims cannot be cured by amendment because, among other reasons,
Plaintiff was unqualified for her position due to her non-compliance with the Vaccine Mandate;
she pleads effect before cause with respect to her retaliation claim; the DOE determined that her
requested accommodation would create undue hardship on the DOE; she received adequate
process before being terminated on the DOE; and she had no fundamental right infringed upon.
See Cuoco, 222 F.3d at 112. Second, Plaintiff has already amended the Complaint once, and
because the Court considered allegations raised in the Opposition as if they were included in the
formal pleadings, Plaintiff has effectively already been given a second opportunity to amend her
complaint. See McKeever v. Singas, No. 17-cv-4996, 2022 WL 5430426, at *2, *15 (E.D.N.Y.
June 16, 2022) (considering allegations raised for the first time in pro se plaintiff’s opposition in
deciding a motion to dismiss and denying plaintiff leave to file a third amended complaint),
report and recommendation adopted as modified, 2022 WL 4095558 (E.D.N.Y. Sept. 7, 2022).
Moreover, Plaintiff does not request further leave to amend and “provides no explanation about
how she intends to amend further her Amended Complaint to provide additional facts.” Pierre v.
N.Y.C. Fire Dep’t, No. 22-cv-7425, 2024 WL 360662, at *4 (E.D.N.Y. Jan. 31, 2024). And “no
court can be said to have erred in failing to grant a request that was not made.” Hirsch v.
Butterman, No. 22-cv-5064, 2025 WL 2145837, at *4 (E.D.N.Y. July 29, 2025) (quoting Gallop
v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011)). Thus, the Court denies leave to amend.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss, ECF
No. 21, and DISMISSES Plaintiff’s Amended Complaint, ECF No. 15, in its entirety. Plaintiff’s
federal claims are dismissed with prejudice pursuant to Rule 12(b)(6). The Court declines to
exercise subject matter jurisdiction over Plaintiff’s state and city law claims and dismisses those
without prejudice. Because the Court concludes that Plaintiff’s claims must be dismissed
pursuant to Rule 12(b)(6), the Court does not reach Defendants’ additional arguments for
dismissal under Rule 12(b)(5).
Although Plaintiff paid the filing fee, the Court certifies, pursuant to 28 U.S.C.
§ 1915(a)(3), that any appeal from this Order would not be taken in good faith and therefore in
forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369
U.S. 438, 444–45 (1962). The Clerk of Court is respectfully directed to enter judgment
consistent with this Order, close this case, mail a copy of this Order to pro se Plaintiff, and note
the mailing on the docket.
SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge
Dated: Brooklyn, New York
August 12, 2026