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

2022 NY Slip Op 34393(U)

In the Matter of LEONARD MOSCATELLI, Petitioner, v. THE NEW YORK CITY POLICE DEPARTMENT and THE CITY OF NEW YORK, Respondents.

Index No. 157990/2022, Motion Seq. No. 001

Supreme Court, New York County

December 22, 2022

Unpublished Opinion

MOTION DATE 10/14/2022

PRESENT: HON. JOHN J. KELLEY JUSTICE

DECISION, ORDER, AND JUDGMENT

John J. Kelley, Judge

The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 16, 17 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 33, and 34 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER)_.

In this proceeding pursuant to CPLR article 78, the petitioner seeks judicial review of a May 31, 2022 determination of the City of New York Reasonable Accommodation Appeals Panel (the Panel) denying his appeal of a November 30, 2021 New York City Police Department (NYPD) Equal Employment Opportunity Division (EEOD) determination that had denied his request for a reasonable accommodation exempting him from the City's mandatory COVID-19 employee vaccination requirement on religious grounds. He also seeks reinstatement to his position with the NYPD, along with back wages and benefits. The respondents---NYPD and City of New York---answer the petition and submit the administrative record. The petition is granted to the extent that the May 31, 2022 determination is annulled as arbitrary and capricious, the denial of the petitioner's request for a religious exemption from the COVID-19 vaccination mandate is vacated, the termination of the petitioner's employment with the NYPD is vacated, the petitioner is reinstated to the position of employment he had with the NYPD as of the date of termination, and the petitioner is awarded all back wages and benefits from the date of the termination of his employment, as set forth herein. The petition is otherwise denied.

By administrative order dated December 13, 2021, the Commissioner of the New York City Department of Health and Mental Hygiene required City agencies to exclude from employment staff members who were not vaccinated against the COVID-19 virus, but provided the opportunity for City employees to apply for a reasonable accommodation exemption from the requirement, based, among other things, on religious grounds. On March 24, 2022, New York City Mayor Eric Adams issued Emergency Executive Order No. 62, referable to the ongoing COVID-19 pandemic. In that executive order, the Mayor incorporated the provisions of the December 13, 2021 order and directed that "covered entities," including the NYPD,

"shall continue to require that a covered worker provide proof of vaccination, unless such worker has received a reasonable accommodation. Covered entities shall continue to keep a written record of their protocol for checking covered workers' proof of vaccination and to maintain records of such workers' proof of vaccination."

The executive order defined "covered workers" to include NYPD employees and officers.

The petitioner was a Detective 1st Grade in the NYPD's DSCI Project Management and Design and Evaluation Offices. On October 26, 2021 and, thus, one day before the applicable deadline, he submitted, to the NYPD, a request for a reasonable accommodation exempting him from the COVID-19 vaccination requirement on the ground that his Catholic faith made it impossible for him to take medications and vaccinations that were developed employing embryonic stem cells. He requested that he "be permitted to continue with the current practice of submitting to regular testing and other reasonable prophylactic means, specifically the use of a mask as indicated in current Department policy." Specifically, he wrote in his request that

"[a]s a child, I was baptized and confirmed as a Catholic and I remain a faithful, active Christian today who subscribes to Christian values and believes in divine law, the bible, and the principles laid out therein, with the deepest of conviction. Based on these holy values, laws, and beliefs communicated by God the Father in the bible and through the blessed teachings of Jesus Christ, I firmly and sincerely believe in the sanctity of human life and attest to the inseparable connection between the presentation of human life as a sacred gift from God and the fruit and sign of his love embodied as such. I have supported these beliefs repeatedly in both my words and actions. In the image and spirit of Christ, I have dedicated my life to the service of others both in my professional and personal life, spending much of my time helping the sick and those in need, through benevolent acts and by seeking guidance in prayer."

"Therefore, I hold the sincerest belief that the use of the bodies of humans killed in elective abortions, regardless of the timing of those acts, to promote biotech research, specifically the development, production, and confirmatory testing of vaccines, is immoral. I believe God has charged all faithful Christians with the duty to oppose any effort to justify and extend the actions of those who benefit from the taking of innocent life. I believe that all medical interventions derived in any way from the use of these cell lines are of illicit origins. In accordance with Christian doctrine, I believe that the bodies of humans during life and after death must be treated with respect and not exploited. According to Church teachings and doctrine, I strongly believe that to be a faithful Christian, I possess the right to live life in accordance with my conscience and I personally cannot ignore my deepest held beliefs, my faith in God, and my adherence to divine law. I also assert that the Church has taught me that a Christian is obliged to faithfully follow what they know in their heart to be just and right by the judgment of their conscience, which is the voice of divine law and the Vicar of Christ. Therefore, as a faithful Christian, I believe I must not be forced to act contrary to my conscience, especially in religious matters and moral decisions. In the bible, Ecclesiastes 12:14 states 'For God will bring every deed into judgment, with every secret thing, whether good or evil' which in my personal understanding of God's message is that each of us will be judged according to our own deeds, not those of another. Therefore I believe that in order to achieve salvation I must act in accordance with my conscience and do not believe in material or formal cooperation with evil acts, past or present, nor do I believe in moral proportionality."

The petitioner further asserted, that, while he did not reject all medical intervention, and that traditional vaccines utilized an adjuvant to induce an immune response, it was his "belief" that

"mRNA vaccines and adenovector vaccines are genetic coding instructions that aim to alter God's design as they purport to instruct your body to produce a spike protein that is not natural to the human genetic system. I believe that the use of this type of biotechnology conflicts with my conviction that we are created in God's image and believe that it is a sin for mankind to mutate his design."

In its November 30, 2021 determination, the NYPD EEOD wrote that, "[a]fter careful review of your application and the documents you submitted, the reasonable accommodation is DENIED at this time." In a supplemental memorandum dated February 8, 2022, that same agency checked off two boxes on a pre-printed form, indicating that its reasons for the determination were that the "[w]ritten statement does not set forth how religious tenets conflict[ ] with vaccine requirement" and that there was "[n]o demonstrated history of vaccination/medicine refusal." It provided no further explanation as to why those boxes were checked. By appeal letter dated February 15, 2022, the petitioner asserted that "fv]accination is not morally obligatory" and that "[t]here is a general moral duty to refuse the use of . . . vaccines that are produced by using human cells derived from direct abortions." The petitioner, however, acknowledged that his faith allowed him to use some vaccines in "certain case-specific conditions, based on a judgment of conscience," and averred that his "informed judgments about the proportionality of medical interventions are to be respected." The petitioner disagreed that he had "[n]o demonstrated history of vaccination/medicine refusal" on religious grounds or any other, although his appeal letter did not describe any prior refusals to accept a vaccination or medication. In its May 31, 2002 appeals determination, the Panel, without explanation, and without adopting the reasons identified in the February 8, 2022 supplemental memorandum, simply denied the petitioner's administrative appeal. This proceeding ensued.

In his petition, the petitioner asserted that the NYPD's determination to reject his request for a reasonable accommodation was arbitrary and capricious and affected by errors of law, in that it violated both the Free Exercise clause of the First Amendment to the United States Constitution and the New York City Human Rights Law (Admin Code of City of N.Y. §§ 8-101, et seq.) by discriminating against him on the basis of his religion. In support of their answer, the respondents submitted, among other things, an affirmation of Michael Melocowsky, an in-house attorney for the NYPD EEOD, who explained the NYPD's procedures for the submission and determination of requests for reasonable accommodations. As he described it,

"[i]n evaluating these requests I relied in part on EEOC guidelines, which set forth four factors that, '. . . either alone or in combination - might undermine an employee's credibility,' including:

(1) whether the employee has behaved in a manner markedly inconsistent with the

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