Garland v. City of N.Y.

665 F.Supp.3d 295

John GARLAND, et al., Plaintiff, v. CITY OF NEW YORK, et al., Defendants.

21-cv-6586(KAM)(CLP)

United States District Court, E.D. New York

Signed March 29, 2023

Michael Lynch, Dennis O'Keeffe, Brian Patrick Smith, Kurt Pflumm, Christopher Raimondi, Paul Schweit, Joseph T. Johnson, David Button, Paul Parr, Mark Sinclair, Daniel Baudille, John Dreher, Thomas Olsen, Giuseppe Robert Penoro, Matthew Connor, Nicholas Mullgan, Randall Santana, Anthony Perrone, Scott Ettinger, Anthony Mastropietro, Rashaad Taylor, Anthony Ruggiero, Joseph Murdocca, Keith Klein, Paul Vasquenz, Mark Henesy, Ryan K. Hall, Jude Pierre, Michelle Santiago, Robert DiTrani, Brian T. Denzler, Michael McGoff.

Austin R. Graff, The Scher Law Firm, LLP, Carle Place, NY, for Plaintiffs Christopher Infante, George J. Murphy, Thomas Fejes, John Costello, Brandon Phillips, Joseph Depaola, Brendan McGeough, Jason Charles, Anthony C. Cardazone, Owen Fay, Michael Fadda, Joseph M. Palmieri, Jared Dychkowski, John Twomley, Matt Koval, Glenn Clapp, Robert Yuli, Matthew Sinclair, Tim Rivicci, John Armore, Michael Samolis, Felicia J. Tsang, William John Saez, Rosario Curto, David Summerfield, Kevin Erkman, Bernadette Mejia, Daniel Young, Sean Fitzgerald, Craig Leahy, Daniel Stroh, Stephen Inguagiato, Stephen Buttafucco, Phillip J. Darcey, Ainsley Atwell, Rodney Colon.

Andrea Mary O'Connor, New York City Law Department, New York, NY, for Defendants New York City Fire Department, Daniel A. Nigro, City of New York.

Hanan B. Kolko, Peter D. DeChiara, Cohen Weiss and Simon LLP, New York, NY, Melissa S. Woods, Meyer, Suozzi English, Klein, New York, NY, for Defendants District Council 37, AFSCME AFL-CIO, Henry Garrido.

MEMORANDUM & ORDER

KIYO A. MATSUMOTO, United States District Judge:

Named Plaintiffs, employees of the New York City Fire Department ("FDNY")¹, commenced this action on November 24, 2021, against the City of New York, then-FDNY Commissioner Daniel A. Nigro, and unnamed John and Jane Does (collectively, "City Defendants"). (ECF No. 1, Complaint ("Compl.").) Defendants were responsible for implementing and enforcing the City's COVID-19 vaccination mandate ("Vaccine Mandate") covering all City employees, as detailed in an October 20, 2021 order issued by the Commissioner of Health ("COH Order") requiring all City employees to provide documentation of at least a first dose of a COVID-19 vaccine by October 29, 2021 or be "excluded from the premises at which they work[ed] beginning on November 1, 2021." (ECF No. 15-1, Exhibit A ("Ex. A") at 3.) The day after the COH Order was issued, on October 21, 2021, the FDNY issued a memorandum notifying FDNY employees about the Vaccine Mandate, the COH Order, and the procedures for FDNY employees to obtain a religious or medical accommodation ("October Memorandum"). The Vaccine Mandate was revoked by the City on February 10, 2023 and is no longer in effect.²

At the time the original complaint was filed on November 24, 2021, Plaintiffs had not received at least one dose of the COVID-19 vaccine, and had been suspended without pay, at least temporarily, by FDNY.³ (ECF No. 1, Compl. at ¶¶ 62-63, 65.) Plaintiffs sought preliminary injunctive relief and asserted that the implementation of the Vaccine Mandate and subsequent consequences violated their procedural due process rights by violating (a) their statutory rights to a specific removal process under N.Y.C. Admin. Code § 15-113 and (b) their contractual rights to a specific removal process under their applicable collective bargaining agreements ("CBA"). (Id. at ¶¶ 67-71, 99-109.) Plaintiffs also asserted claims under 42 U.S.C. § 1983 against City Defendants for violating Plaintiffs' procedural due process rights, and a claim against Defendant Nigro for his alleged participation in these violations. (Id. at ¶ 110-15.)

On November 24, 2021, Plaintiffs moved for a preliminary injunction to restore them to pay status and prohibit City Defendants from "disciplining" them further. (ECF No. 5, Motion for Preliminary Injunction.) After providing the parties with an opportunity to present evidence and submissions before, during, and after a show cause hearing, the Court denied Plaintiffs' motion for injunctive relief in a Memorandum and Order ("December 2021 Order") dated December 6, 2021. (ECF No. 24, Order Denying Preliminary Injunction ("December 2021 Order").)

Plaintiffs filed an amended complaint ("Amended Complaint"), adding Defendants District Council 37, AFSCME AFL-CIO ("DC37"), a union that represents FDNY's emergency medical services ("EMS") employees, and Harry Garrido, DC37's Executive Director (collectively, "DC37 Defendants").⁴ (ECF No. 27, Amended Complaint ("Amended Compl.") at ¶¶ 92-93, 120-21.)

Presently before the Court are City Defendants' motion to dismiss and DC37 Defendants' motion to dismiss. For the reasons set forth below, Defendants' motions to dismiss are GRANTED.

BACKGROUND

The Court first reviews the factual and procedural background of the Court's December 2021 Order denying Plaintiffs' motion for a preliminary injunction. (ECF No. 24, December 2021 Order, at 3-6.) The Court also reviews the operative Amended Complaint, accepting as true for purposes of Defendants' motions the factual allegations in the complaint and drawing all reasonable inferences in Plaintiffs' favor. Melendez v. City of New York, 16 F.4th 992, 1010 (2d Cir. 2021). The Court, however, is "not bound to accept as true a legal conclusion couched as a factual allegation." Drimal v. Tai, 786 F.3d 219, 223 (2d. Cir. 2015) (internal quotation marks omitted); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("[T]he tenet that a court must accept as true all of the allegations contained in [an amended] complaint is inapplicable to legal conclusions.").

I. December 2021 Order

In the Court's December 2021 Order, the Court determined that because Plaintiffs requested a mandatory injunction—one that "alters the status quo by commanding a positive act"—they were required to establish a "clear" or "substantial" likelihood of success on the merits of their claims. (ECF No. 24, December 2021 Order, at 6 (citing D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006) (citation omitted)).) The Court found that Plaintiffs failed to do so and denied injunctive relief.⁵ (Id. at 10.)

First, as to Plaintiffs' procedural due process claims, although Plaintiffs had a protected property interest in their pay and continued employment, the Court found that Plaintiffs had been provided constitutionally adequate process before being deprived of their property interests. (Id. at 10.) Quoting the Second Circuit's holding in Adams v. Suozzi, 517 F.3d 124, 128 (2d Cir. 2008), the Court noted that "there is no due process violation where, as here, pre-deprivation notice is provided and the deprivation at issue can be fully remedied through the grievance procedures provided for in a collective bargaining agreement." (ECF No. 24, December 2021 Order at 14-15.) The Due Process Clause would be implicated only if Plaintiffs could establish that "the grievance procedures in a collective bargaining agreement [were] an inadequate remedy," which Plaintiffs had not done. (Id. at 15 (quoting Adams, 517 F.3d at 128).)

During the show cause hearing for the preliminary injunction, the three EMS Plaintiffs who belonged to the DC37 union challenged the agreement that DC37 had negotiated with the City regarding the leave and separation procedures for City employees who did not comply with the Vaccine Mandate ("DC37 Agreement").⁶ (Id. at 5-6.) The Court's December 2021 Order noted that, generally, "a union member has no standing to enforce the collective bargaining agreement between their employer and union against the employer directly," but that even if the EMS Plaintiffs had standing, they could not show a clear or substantial likelihood of success on the merits of their procedural due process claims. (Id. at 8-9 (citation omitted).)

Overall, the Court concluded that "the pre-deprivation and post-deprivation processes afforded to Plaintiffs were constitutionally adequate." (Id. at 16.) The Court found the following:

Plaintiffs received ample pre-deprivation notice, via the [October Memorandum] from Hodgens, the Chief of Operations of the FDNY, of: (1) the [COH] Order, (2) the requirement to submit proof of vaccination by October 29, 2021, (3) their ability to seek reasonable accommodation by October 27, 2021; and (4) their placement on [leave without pay] status if they failed to comply with the Order and did not submit an accommodation request by the October 27 deadline.

(Id. at 16-17.) Moreover, the Court found that Plaintiffs were provided with an opportunity to be heard before a final decision. (Id. at 17.) The opportunity to respond need not be a formal hearing. Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775, 786 (2d Cir. 1991). Indeed, any FDNY employees who challenged whether the Vaccine Mandate should apply to them not only "had the opportunity to seek a religious or medical accommodation," they also "remain[ed] on pay status pending the decision on their request or appeal, so long as their accommodation requests were submitted prior to October 27, 2021." (ECF No. 24, December 2021 Order at 17.) This Court found that the only reason that the vast majority of named Plaintiffs had been suspended without pay was because they requested an accommodation too late. (Id. at 17.) Therefore, Plaintiffs could not claim that they were deprived of due process simply by "not having availed themselves of the pre-deprivation opportunity to be heard." (Id. at 18.)

The Court also concluded that there were sufficient post-deprivation procedures to establish constitutionally adequate process. (Id.) Any FDNY employee granted an accommodation would be restored to payroll and provided back pay, and there was an appeal process for any employee whose reasonable accommodation...