Broecker v. New York City Department of Education

• Decision Date: 11 February 2022
• Docket Number: 21-CV-6387(KAM)(LRM)
• Citation: 585 F.Supp.3d 299
• Parties: Nicole BROECKER, et al., Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

585 F.Supp.3d 299

Nicole BROECKER, et al., Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants.

21-CV-6387(KAM)(LRM)

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

Signed February 11, 2022

585 F.Supp.3d 305

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-Pacius, 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 Defendants United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, Michael Mulgrew, Council of Supervisors and Administrators, Mark Cannizzaro.

Hanan B. Kolko, Peter D. DeChiara, Cohen Weiss and Simon LLP, Melissa S. Woods, Meyer, Suozzi English, Klein, New York, NY, for Defendants District Council 37, AFSCME AFL-CIO, Henry Garrido, District Council 37, AFSCME AFL-CIO, Local 372, Shaun D. Francois I, Francine Francis.

Peter D. DeChiara, Cohen, Weiss and Simon LLP, New York, NY, for Defendant District Council 37, AFSCME AFL-CIO, Local 1251.

Gregg D. Weinstock, Karolina Maria Wiaderna, Angela Rose Bonica, Vigorito, Barker, Patterson, Nichols & Porter LLP, Garden City, NY, for Defendants Martin F. Scheinman, Scheinman Arbitration and Mediation Services, Scheinman Arbitration and Mediation Services, LLC.

MEMORANDUM & ORDER

KIYO A. MATSUMOTO, United States District Judge:

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The 93 named Plaintiffs in the Amended Complaint (collectively "Plaintiffs") have not received at least a first dose of a COVID-19 vaccine and are employed and work at schools operated by the New York City Department of Education ("NYC DOE"), and are members of various unions named as Defendants. 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"); Michael Mulgrew, President of the UFT; Counsel of Supervisors and Administrators ("CSA"), Mark Cannizzaro; District Council 37, AFSCME AFL-CIO, Local 372 ("DC 37 Local 372") Henry Garrido; Shaun D. Francois I; District Council 37, AFSCME AFL-CIO, Local 1251 ("DC 37 Local 1251") (together with DC Local 372, "DC 37"); Martin F. Scheinman, Scheinman Arbitration and Mediation Services, and Scheinman Arbitration and Mediation Services LLC (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 pursuant to an Order from the New York City Commissioner of Health and Mental Hygiene ("COH Order") 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. Defendants UFT, CSA, and DC 37 are labor organizations through which certain named Plaintiffs are covered by collective bargaining agreements ("CBAs") with the NYC DOE.

For the second time in this action, Plaintiffs seek a preliminary injunction to enjoin and restrain Defendant NYC DOE from "unilaterally terminating the Plaintiffs without due process." (ECF No. 76-13, Pls. Mem., P. 2.) Defendants UFT and CSA support Plaintiffs’ motion. (ECF No. 77.)¹

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For the reasons discussed below, Plaintiffs’ motion for preliminary injunction and temporary restraining order is DENIED.

BACKGROUND

The Court incorporates by reference in its entirety the factual background, procedural background, and evidentiary record described in and submitted in relation to the Court's November 24, 2021, Memorandum and Order ("Order"). (ECF No. 33.) The November 24, 2021, the Order denied the Plaintiffs’ November 17, 2021, motion for preliminary injunction and temporary restraining order ("First Motion for Preliminary Injunction") which sought to enjoin the NYC DOE from implementing procedures to seek termination of employees who failed to obtain a first dose of the vaccine, apply for a religious or medical exemption, or extend their leave without pay ("LWOP") status while retaining health benefits. (ECF No. 33, Nov. 24, 2021, M&O.)²

In the Court's November 24, 2021, Order, the Court noted that the effects and devastating impacts of the novel coronavirus, COVID-19, particularly on the unvaccinated, were well known. Since the date of that Order, the rapid rise of new highly transmissible variants of COVID-19 once again plunged the City of New York and the entire country into further periods of uncertainty and risk of serious illness or death for the unvaccinated. From December 2021 to January 2022, the Omicron variant descended on New York, bringing with it heightened levels of transmissibility and illness from COVID-19.³

Plaintiffs filed an Amended Complaint on January 10, 2022, naming additional parties. (ECF No. 47, Am. Compl.) On January 31, 2022, the NYC DOE notified employees who had failed to receive a COVID-19 vaccine and also failed to either (1) apply for and receive a medical or religious accommodation, or (2) extend their Leave Without Pay ("LWOP") status and continued medical benefits until September 2022, that their employment would terminate on February 11, 2022. (See ECF No. 76-7, Pls. Ex. A, Termination Notices.) These termination notices stated in relevant part:

You have previously received notice regarding your failure to comply with the New York City Health Commissioner's Order requiring vaccination of all New York City Department of Education staff. Compliance with that Order is a condition of employment. Since you have not complied with the Order and have not chosen to extend your leave without pay, despite notice and an opportunity to do so, your employment with the New

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York City Department of Education is terminated, effective February 11, 2022. Please note that your health insurance coverage through the City will also cease upon termination.... Information about COBRA will be mailed to you separately at the address on file in NYCAPS.... If you believe you are receiving this notification in error, please email LWOPquestions@schools.nyc.gov no later than February 2, 2022.

(See, e.g. , ECF No. 76-7, Pls. Ex. A, p. 1.) Of the ninety-three Plaintiffs, forty-three⁴ received termination notices and face termination from their employment at the NYC DOE, effective on February 11, 2022. (ECF No. 76-1, Graff Aff., n.1.)⁵

On February 4, 2022, four days after the NYC DOE termination notices were received—and 164 days after the Vaccination Mandate was first issued on August 24, 2021—Plaintiffs filed a pre-motion conference request, seeking leave to file an emergency application for preliminary injunction and temporary restraining Order against the NYC DOE's termination of noncompliant NYC DOE employees. (ECF No. 72, Pls. Pre-Motion Req.) On that same date, the Court deferred a ruling on the Plaintiffs’ request for a pre-motion conference, and ordered all Defendants to respond to the Plaintiffs’ pre-motion conference request on an expedited basis. (Dkt. Order, Feb. 4, 2022.) Defendants UFT and CSA filed a response in support of Plaintiffs’ pre-motion conference request, and stated their own intention to seek injunctive relief against the NYC DOE. (ECF No. 73.) Defendants NYC DOE (ECF No. 74) and Defendants Martin F. Scheinman and the Scheinman Arbitration and Mediation Services entities (ECF No. 75) filed letters in opposition to Plaintiffs’ pre-motion conference request.

The Court granted the Plaintiffs’ pre-motion conference request on February 7, 2022, and held a pre-motion conference on that same date. (Dkt. Order, Feb. 7, 2022; Min. Entry Feb. 7, 2022.) At the pre-motion conference, the Court ordered expedited briefing as to Plaintiffs’ emergency application for injunctive relief. (Min. Entry Feb. 7, 2022.) Discussions during the pre-motion conference included Defendant UFT's lack of representative or associational standing to seek an injunction together with the Plaintiffs’ against whom the UFT is adverse. Defendants UFT and CSA represented to the Court that they would submit only a letter stating support of the Plaintiffs’ emergency application for injunctive relief. (See id. ) Defendants UFT

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and CSA further represented that they would not separately seek injunctive relief in the instant action. (Id. )⁶

Plaintiffs filed a motion for preliminary injunction...