Broecker v. N.Y.C. Dep't of Educ.

573 F.Supp.3d 878

Nicole BROECKER, et al., Plaintiffs,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, City of New York, Meisha Porter, in her official and individual capacities, United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, Michael Mulgrew, in his official and individual capacities, John Doe #1-10, in their official and individual capacities, and Jane Doe #1-10 in their official and individual capacities, Defendants.

21-CV-6387 (KAM)(RLM)

United States District Court, E.D. New York.

Signed November 24, 2021

Austin R. Graff, The Scher Law Firm, LLP, Carle Place, NY, for Plaintiffs Nicole Broecker, Michelle Martino, Gina Porcello, Amoura Bryan, Rena Gellman, Fotina Lambos, Kerry Ben-Jacob, Ekaterina Udina, Andrea Tichio, Marianna Ciacca-Liss, Anita Quash, Kelly Dixon, Felicia Hagan, Maritza Romero, Maria Ruscelli, Betziada Cruz, Francine Trapani, Jeannine Lam, Jessica Narciso, Brianna Perez, Nicoletta Masullo, Anastasia Christopoulos, Faye Kotzer, Benedict LoParrino, Yaditza Rodriguez, Rafael Toro, Serina Mendez, Dina Hussein, Herendyra Pereyra, Rosa Abreu, Joan Giammarino, Andrea Jackson, Maria Klapakis, Stella Porto, Toniann Miraglia, RoseAnna Silverstri Incantalupo, Julia Mavis, Christopher Hansen, Annette Backof, Diane Pagen, Lynn Pepe, Stephanie Edmonds, Yvonne Costello, Debbie Hartz, Soraya Sanchez, Monique Moore, Angela Velez, Sally Mussafi, Jessica Nicchio, Dorca Genao, Rachel Maniscalco, James Hoffman, Sharlayne Jacobs, Crystal Salas, Frances DiProssimo, Carola Martinez-vanBokkem, Ayse Ustares, Elizabeth Figueroa, Dianne Baker-Pascius, Nicole Moore, Elizabeth Placencio, Debbie Bertram, Kimberli Madden, Fran Schmitter, Victoria Russo, Paul Cifarelli, Danielle Heal, Sara Coombs-Moreno, Lisa Simo, Tami Beneduce, Zabdiel Valera, Nathalie Charles, Janelle Lotito, Jeanean Sanchez, Marie Mosley, Tara Palladino, Danielle McGuire, Julia Harding, Leah Kukla, Stephanie Franzese, Julia Blasis-Maring, Beth Schiano, Laura Salamone, Aura Moody, Aubrey Joergens, Meagan Velez, Jennifer Zaccariello, Richard Joseph, Elizabeth Loiacono, Lorraine Masciarelli, Deidra Statuto, Eleni Gerasimou, Henrietta Shaya.

Andrea Mary O'Connor, Ivan A. Mendez, Jr., New York City Law Department, New York, NY, for Defendants New York City Department of Education, Meisha Porter.

Alan M. Klinger, Arthur J. Herskowitz, Dina Kolker, Stroock & Stroock & LaVan LLP, New York, NY, for Defendant United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO.

MEMORANDUM AND ORDER

MATSUMOTO, United States District Judge:

The 83 named Plaintiffs are individuals (collectively "Plaintiffs") who have not received at least a first dose of a COVID-19 vaccine and are employees at schools operated by the New York City Department of Education ("NYC DOE").¹ Named Defendants are the NYC DOE, the City of New York, Meisha Porter, the Chancellor of the NYC DOE, the United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO ("UFT"), and Michael Mulgrew, President of the UFT (collectively "Defendants"). Defendants NYC DOE and the City of New York are entities responsible for enacting and enforcing a COVID-19 vaccination mandate (the "Vaccination Mandate") issued on August 24, 2021, requiring that all NYC DOE employees receive at least a first dose of a COVID-19 vaccination by September 27, 2021, in order to work at NYC DOE schools. Defendant UFT is a labor organization through which certain named Plaintiffs are covered by a collective bargaining agreement ("CBA") with the NYC DOE.

Plaintiffs allege three categories of claims in their Complaint. First, they allege that the Order violates their right to procedural due process under the Due Process Clause of the Fourteenth Amendment because Plaintiffs have a property interest in their pay. (ECF No. 2-10, Pl. Mem., at p. 1.) Second, Plaintiffs allege that the Vaccine Mandate violates their statutory and contractual rights, as Plaintiffs have a right to have charges proffered against them and have a hearing before "discipline" is imposed pursuant to N.Y. Education Law § 3020 -1, or N.Y. Civil Service Law § 75, or the applicable CBA. (ECF No. 2-10, Pl. Mem., at pp. 1-2.) Third, Plaintiffs allege collusion and aiding and abetting under 42 U.S.C. § 1983 against the UFT, Mulgrew, Porter, and unnamed Jane and John Doe Defendants. (ECF No. 1, Compl. pp. 23-28.)

Plaintiffs seek a preliminary injunction to enjoin and restrain (1) the Defendants from withholding pay from any and all tenured principals, assistant principals, and teachers who have failed to take a COVID-19 vaccine; (2) the Defendants from withholding pay from any and all civil service employees entitled to N.Y. Civil Service Law § 75 rights who have failed to take a COVID-19 vaccine; (3) the Defendants from withholding pay from any and all employees of the NYC DOE who have failed to take a COVID-19 vaccine and who, as a term of their union's collective bargaining agreement with the NYC DOE, allegedly cannot be terminated or disciplined without a hearing; (4) the NYC DOE from disciplining, including but not limited to terminating, tenured principals, assistant principals, and teachers who have failed to take a COVID-19 vaccine without proffering charges and specifications and granting the tenured employees a hearing on the charges; (5) the NYC DOE from disciplining, including but not limited to terminating, any and all civil service employees entitled to N.Y. Civil Service Law § 75 rights who have failed to take a COVID-19 vaccine, without proffering charges and specifications; and, (6) the NYC DOE from disciplining, including but not limited to terminating any and all employees of the NYC DOE who have failed to take a COVID-19 vaccine and who, as a term of their union's collective bargaining agreement with the NYC DOE, allegedly cannot be terminated or disciplined without proffering charges and specifications and a hearing. (ECF No. 2, Pl. Proposed Order to Show Cause, at pp. 2-4.)

For the reasons stated below, Plaintiffs’ motion for injunctive relief is DENIED.

BACKGROUND

I. Factual Background

The COVID-19 pandemic and its devastating, lasting effects on society are well known. The City of New York has enacted a series of COVID-19 related safety mandates and protocols as part of the City's effort to slow and contain the spread of the novel coronavirus. On August 24, 2021, prior to the commencement of the New York City school year, the Commissioner of the New York City Department of Health and Mental Hygiene ("DOHMH"), issued an order requiring all NYC DOE employees to show proof of compliance with the Vaccine Mandate, meaning receipt of at least one dose of vaccination against COVID-19 by September 27, 2021. (See ECF No. 18, Def. NYC DOE Mem. in Opp. at p. 1.)

On September 10, 2021, the UFT filed a Declaration of Impasse with the Public Employment Relations Board ("PERB") over the impact of the Vaccination Mandate. (See ECF No. 19-1, O'Connor Decl., Ex. A (September 10, 2021 Arbitration Award Decision in Board of Education of the City School District of the City of New York and the UFT (hereafter "Impact Arbitration Award"), at 4).)

Following expedited mediation and discussions between the NYC DOE, the City of New York, and the UFT, the appointed arbitrator, on September 10, 2021, the arbitrator issued a binding arbitration decision ("Impact Arbitration Award"), which established in relevant part (1) a processes for religious and medical exemptions and accommodation requests, namely, processes for staff to apply for, and appeal from adverse determinations for medical and religious accommodations to an independent arbitration panel (and the ability to remain on the DOE payroll and continued medical benefits coverage while such applications and appeals are pending); (2) options to voluntarily separate from DOE service with certain compensation benefits, or to elect for an extended non-disciplinary leave without pay ("LWOP"), all while maintaining health benefits until September 5, 2022; and (3) that as of December 1, 2021, the DOE may seek to unilaterally separate employees who have not complied with the Vaccination Mandate, or who have not obtained an approved exemption or accommodation and have not opted for either separation option. (See ECF No. 19-1, Impact Arbitration Award at pp. 6-18; ECF No. 18, Def. NYC DOE Opp. Mem. at p. 5; ECF No. 20, Def. UFT Opp. Mem., at p. 3.) The Impact Arbitration Award further provides that employees extending their LWOP period to September 5, 2022, may return immediately to their positions at NYC DOE schools upon demonstrating compliance with the Vaccination Mandate. (Id. ) As to separation of service, the Impact Arbitration Award restricted the NYC DOE from seeking to separate DOE employees on LWOP due to non-compliance with the Vaccination Mandate, prior to December 1, 2021. (See ECF No. 19-1, Impact Arbitration Award at pp. 16-18.) Under the terms of the Impact Arbitration Award, on December 1, 2021, the separation restriction on the NYC DOE will be lifted, and the NYC DOE is authorized as of that date to seek the termination of noncompliant employees through existing procedures. (ECF No. 19-1, Impact Arbitration Award at pp. 17-18; ECF No. 18, Def. NYC DOE Opp. Mem. at p. 5; ECF No. 20, Def. UFT Opp. Mem., at p. 3.) Finally, and importantly, the Impact Arbitration Award states that the processes contained in the text of the Impact Arbitration Award for NYC DOE employees challenging the Vaccination Mandate or seeking exemptions,

[S]hall constitute the exclusive and complete administrative processes for the review and determination of requests for religious and medical exemptions to the mandatory vaccination policy and accommodation requests where the requested accommodation is the employee not appear at school. The process shall be deemed complete and final upon the issuance of an appeal decision. Should either party have reason to believe the process set forth,

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