Brousseau v. The N.Y.C. Police Dep't

1

2022 NY Slip Op 33734(U)

JEFFREY BROUSSEAU, Petitioner, v. THE NEW YORK CITY POLICE DEPARTMENT, THE CITY OF NEW YORK Respondents.

Index No. 157739/2022, Motion Seq. No. 001

Supreme Court, New York County

November 1, 2022

Unpublished Opinion

DECISION + ORDER ON MOTION

Arlene P. Bluth, Judge

The following e-filed documents, listed by NYSCEF document number (Motion 001) 1-33 Article 78 were read on this motion to/for Article 78

The petition is granted to the extent that petitioner is entitled to a religious exemption from the vaccine mandate imposed on police officers in New York City.

Background

Petitioner is a police officer with the NYPD. He submitted an application requesting an exemption from the COVID-19 vaccine mandate on October 24, 2021 (NYSCEF Doc. No. 1 at 4). In his letter, petitioner stated that he was born and raised in the Catholic faith and his understanding of the Bible led him to believe that "immunizations [are] contrary to [his] sincere and genuine religious belief," (NYSCEF Doc. No 4). As a result, he claimed he could not get a vaccine because it interfered with his religious beliefs (id.).

On November 30, 2021, respondents denied petitioner's initial request for a religious exemption (NYSCEF Doc. No 31). The denial simply stated that petitioner's request was denied (id.). Petitioner appealed this decision on December 5, 2021, and wrote a second letter detailing his religious objections to receiving the COVID-19 vaccine (NYSCEF Doc. No. 32). Respondents re-issued their initial denial on February 8, 2022 in a "form letter" in which three boxes were checked as reasons for the denial (NYSCEF Doc. No. 33). These reasons were "Objection was personal, political, or philosophical" "Insufficient or missing religious documentation," and "Written statement does not set forth how religious tenets conflicts with vaccine requirement," (id.). Finally, on August 31, 2022, respondents denied petitioner's appeal to a City Wide panel in an email simply stating, "Does Not Meet Criteria," (NYSCEF Doc. No. 19). Petitioner commenced this proceeding, and the Court granted a temporary restraining order preventing petitioner from being terminated from his position.

Petitioner contends that the agency's denial of his exemption was arbitrary and capricious because respondents did not cite any specific item from the record to support their denial. Additionally, petitioner argues that the respondent's decision is arbitrary and capricious because professional athletes and performing artists are not subject to the vaccine mandate despite working in spaces operated by New York City.

In opposition, respondents claim that petitioner was informed of the basis for the denial of his request. Respondents contend the final decision had a rational basis, and that the form letter with explanatory boxes was recently approved by a court as containing sufficient explanations. Moreover, respondents argue that petitioner waived the argument that the February 8, 2022 denial did not adequately explain the reasons for denying the request because petitioner failed to indicate he ever received the second denial and did not address this letter in his petition. Additionally, respondents state that the documents petitioner submitted did not support his claim that his religious beliefs precluded him from becoming vaccinated. Respondents also state that petitioner's concern regarding the use of animal products in development of the vaccines is misguided as no animal products were used in developing any of the vaccines. Finally, respondents contend that petitioner did not establish that his purported religious beliefs were sincere because he did not provide any information demonstrating how his religious beliefs conflict with the vaccine requirement. Respondents request that if the Court does not deny the petition, the Court remand the matter back to respondents for re-consideration of petitioner's claims.

Discussion

In an article 78 proceeding, "the issue is whether the action taken had a rational basis and was not arbitrary and capricious" (Ward v City of Long Beach, 20 N.Y.3d 1042, 1043, 962 N.Y.S.2d 587 [2013] [internal quotations and citation omitted]). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (id.). "If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable" (id.). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222 231, 356 N.Y.S.2d 833 [1974]).

The Court grants the petition only to the extent that petitioner is entitled to a religious exemption from the Covid-19 vaccine mandate and may not be terminated by the NYPD due to a lack of Covid-19 vaccine.

In support of his application for a religious exemption, petitioner pointed to his religious upbringing and his views about the vaccines. In response to this letter, respondents issued a blanket denial with no explanation. When petitioner appealed, respondents issued a second denial with three reasons checked off. The issue for this Court is the three reasons cited are conclusory and vague. They do not assess petitioner's specific reasons for requesting a religious exemption or analyze why respondents do not credit petitioner's assertions. There is no evidence, from that decision (or any other in this record), that respondents even read petitioner's application.

The first reason identified was that petitioner's "Objection was personal, political or philosophical." While that may be a rational justification for denying a request for a religious exemption, it must be supported by an explanation as to why petitioner's objections were not religious in nature. Respondents' memorandum of law in opposition provided a robust analysis of petitioner's claims and gave a clear rationale behind the conclusions respondent reached (NYSCEF Doc. No. 26) - had this been in the initial denial or in the City Wide panel's decision, then that would have been more than enough for this Court to uphold the decision. But it wasn't. And the issue is not what the respondents' lawyers in Supreme Court think - the issue is what was the basis of the decision denying petitioner's request. Because there is no indication as to why the decision was made, the Court is left to guess or speculate about whether respondents viewed petitioner's objection as personal or political or philosophical, two of these three reasons, or, maybe, all three.

Of course, respondents cannot supplement the record by raising a justification for the first time in this proceeding. "Notably, a fundamental principle of administrative law long accepted limits judicial review of an administrative determination solely to the grounds invoked by the respondent, and if those grounds are insufficient or improper, the court is powerless to sanction the determination by substituting what it deems a more appropriate or proper basis. Consequently, neither Supreme Court nor this Court may search the record for a rational basis to support respondent's determination, or substitute its judgment for that of respondent" (Matter of Figel v Dwyer, 75 A.D.3d 802, 804-05, 907 N.Y.S.2d 75 [3d Dept 2010] [internal quotations and citations omitted]).

The second reason, that petitioner provided "Insufficient or missing religious documentation," is also unaccompanied by any explanation whatsoever. There is no indication as to what constitutes sufficient documentation or what documents are missing from petitioner's request. Once again, respondents' attorneys describe the process for finding a religious belief to be "sincere" in their opposition brief, and indicate that scientific or health-related personal beliefs are not sincerely held religious beliefs (NYSCEF Doc. No. 26 at 8). Again, this is what respondents' counsel now argues, but because respondent did not put it in its decision, this Court has no idea what the decision maker below thought. Finding "insufficient or missing religious documentation" does not translate to finding an insincere religious belief.

The third reason - "Written statement does not set forth how religious tenets conflicts with vaccine requirement"-also contains no explanation. Similar to the second reason, respondents failed to elaborate on what more petitioner could have stated to indicate how his religious tenets prevent him from receiving the vaccine. Respondents had the opportunity to demonstrate why petitioner's belief that the vaccine contained cells derived from animal tissues is wholly irrational and reeks of online disinformation campaigns. Respondents could have said leaders of the Catholic Church have decided that the vaccine does not conflict with Catholic beliefs. But they did not - they just checked a vague a box, which does nothing to create a record that this Court (or the petitioner) can rely on to understand the reasoning (if any) behind respondents' decision.

Finally after petitioner appealed to a City Wide Panel, petitioner was met with yet another decision devoid of any reasoning. The Panel simply found that petitioner "did not meet criteri...