Garland v. N.Y.C. Fire Dep't

574 F.Supp.3d 120

John GARLAND, et al., Plaintiffs,

v.NEW YORK CITY FIRE DEPARTMENT, Daniel A. Nigro, 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-6586 (KAM)(CLP)

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

Signed December 6, 2021

Jonathan L. Scher, Austin R. Graff, The Scher Law Firm, LLP, Carle Place, NY, for Plaintiffs John Garland, Vincent A. Bottalico, Timothy A. Heaton, Joseph Bevilacqua, Joseph Cicero, Joseph Columbia, Andrew Costello, James Daniel Daly, III, Vincent Defonte, Kenneth DeForest, Salvatore DePaola, Brian F. Doyle, Nathan Evans, Christopher Filocamo, Kevin Garvey, Charles Guarneiri, Daniel J. Oshea, Margot Loth, 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.

Seth H. Greenberg, Greenberg Burzichelli Greenberg P.C., Lake Success, NY, for Defendant Uniformed Fire Officer Association, Local 854 International Association of Firefighters, Affiliated with the AFL-CIO.

Jennifer A. Bentley, Joshua Feldman, Paul S. Linzer, Certilman Balin Adler & Hyman LLP, East Meadow, NY, for Defendant Uniformed Firefighters Association of Greater New York.

MEMORANDUM AND ORDER

MATSUMOTO, United States District Judge:

Named Plaintiffs are employees of the New York City Fire Department ("FDNY")¹ who have not received at least one dose of a COVID-19 vaccine.² Plaintiffs filed this action on November 24, 2021, on their behalf and on behalf of those who are similarly situated (together, "Plaintiffs"). (ECF No. 1, Compl.) Defendants are the FDNY, Daniel A. Nigro, the Commissioner of the FDNY, and unnamed John and Jane Does ("Defendants").

Defendants are responsible for implementing the order issued by David A. Chokshi, the Commissioner of the New York City Department of Health and Mental Hygiene ("DOHMH"), dated October 20, 2021 (the "Order"), requiring that all City employees show documentation of having received one dose any COVID-19 vaccine by 5:00 P.M. on October 29, 2021. (ECF No. 14, Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion for TRO/PI ("Defs. Opp."), at 8.) Pursuant to the Order, any City employee who failed to provide the requisite proof of vaccination by October 29, was "excluded from the premises at which they work beginning on November 1, 2021." (ECF No. 15-1, Exhibit A to the Declaration of Andrea O'Connor ("O'Connor Decl."), at 3.) The Order also provided that it did not "prohibit any reasonable accommodation otherwise required by law." (Id. at 5.)

Plaintiffs assert four claims in their Complaint. First, Plaintiffs claim that the Order violates their procedural due process rights because they have property interests in their continued employment and pay. (Compl. ¶¶ 67-71.) Second, they assert that the Order violates their statutory and contractual rights, as Plaintiffs are entitled to certain process prior to removal pursuant to N.Y.C. Admin. Code § 15-113, or the applicable collective bargaining agreement ("CBA").³ (Compl. ¶ 103; ECF No. 5-8, Memorandum of Law in Support of Plaintiffs’ Motion for TRO/PI ("Pls. Mem."), at 9-11.) Third, Plaintiffs assert a § 1983 claim, arguing that Defendants, acting under color state of law, violated their procedural due process rights. (Compl. ¶¶ 99-109.) Fourth, Plaintiffs allege direct participation in, and aiding and abetting violations under 42 U.S.C. § 1983 against Defendant Nigro. (Compl. ¶¶ 110-15.)

Plaintiffs seek a mandatory injunction restoring them to pay status and a prohibitory injunction against Defendants from disciplining Plaintiffs without first proffering charges and providing a pre-deprivation hearing, during which the person against whom the charges are brought can defend themselves before a neutral hearing officer.

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

BACKGROUND

I. Factual Background

On October 20, 2021, the Commissioner of the DOHMH issued the Order, requiring all New York City employees to show documentation of receiving at least one dose of any COVID-19 vaccine by 5:00 P.M. on October 29, 2021. (Defs. Opp. at 1.) Pursuant to the Order, any City employee who failed to provide the requisite proof of vaccination was "excluded from the premises at which they work beginning on November 1, 2021." (Exhibit A to O'Connor Decl. at 3.)

All FDNY personnel were informed of the Order via a notice sent on October 21, 2021 from John J. Hodgens, the Chief of Operations of the FDNY (see ECF No. 17-1, Exhibit 1 to Plaintiffs’ Reply Memorandum of Law ("Pls. Reply"), at 4).⁴ The October 21 notice advised that any FDNY employee who wishes to seek an exemption from the vaccine mandate based on a sincerely held religious belief or medical contraindication must submit a request to the Equal Employment Office by October 27, 2021, and that employees who fail to comply with the Order and do not submit an exemption request by the October 27 deadline would be placed on leave without pay ("LWOP") status on November 1, 2021.

Plaintiffs filed the Complaint in this action on November 24, 2021, just shy of a month after the October 29, 2021, deadline to demonstrate compliance with the vaccine mandate in the Order. (Compl.)

II. Procedural Background

Plaintiffs filed their class action Complaint on November 24, 2021, on their behalf and on behalf of all persons similarly situated. (Compl.) That same day, Plaintiffs moved for a temporary restraining order and a preliminary injunction. (ECF No. 5, Proposed Order to Show Cause.) The Court, also on November 24, 2021, issued an Order to Show Cause, ordering: (1) personal service on all named Defendants to be made on or before 9:00 A.M., Friday, November 26, 2021; (2) Defendants to respond to the Order to Show Cause via ECF by Monday, November 29, 2021, at 5:00 P.M.; and (3) counsel for named Plaintiffs and Defendants to appear for a hearing before the Court on Tuesday, November 30, 2021, at 3:00 P.M. (ECF No. 9, Order to Show Cause.)

Named Defendants filed papers in opposition to Plaintiffs’ motion for injunctive relief on November 29, 2021, including a memorandum of law, the Declaration of Andrea O'Connor, and attached exhibits. (Defs. Opp.; ECF No. 15, O'Connor Decl.) Defendants noted that all Plaintiffs, except one, have exemption requests pending, and nine Plaintiffs received the vaccine and have been restored to payroll. (Defs. Opp. at 4.)

Counsel for the parties appeared before the Court on November 30, 2021, for a show cause hearing, but they did not present witness testimony. During the show cause hearing, Plaintiffs requested, and the Court granted, supplemental briefing on the issue of whether those Plaintiffs whose bargaining agent is District Council 37 ("DC 37"), have standing to challenge the agreement negotiated between the City and their union, DC 37, with respect to the leave and separation procedures for City employees who did not comply with the Order ("DC 37 Agreement").⁵

LEGAL STANDARD

A party seeking a preliminary injunction must establish "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citations omitted).

Where, as here, the injunctive relief sought is a mandatory injunction, or an injunction that "alters the status quo by commanding a positive act," the movant must meet the higher standard of "mak[ing] a clear or substantial showing of a likelihood of success on the merits." D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ. , 465 F.3d 503, 510 (2d Cir. 2006) (citation omitted) (internal quotation marks omitted). Here, Plaintiffs, having been on LWOP for over a month due to their failure to seek an exemption by October 27, 2021, or comply with the Order by October 29, seek a mandatory injunction, asking the Court to alter the status quo by restoring them to FDNY payroll.⁶ Accordingly, Plaintiffs must meet the higher standard for a mandatory injunction by showing a "clear" or "substantial" likelihood of success on the merits. See Tom Doherty Assocs., Inc. v. Saban Entm't, Inc. , 60 F.3d 27, 33-34 (2d Cir. 1995) ; Doninger v. Niehoff , 527 F.3d 41, 47 (2d Cir. 2008).

DISCUSSION ⁷

I. Necessary Parties

As a threshold matter, Plaintiffs named as Defendants only the FDNY, Commissioner Nigro, and unnamed Jane and John Does. Plaintiffs thus have failed to name necessary parties whose joinder is required under Fed. R. Civ. P. 19, namely, the City of New York, the Uniformed Firefighters Association ("U...