Labarbera v. NYU Winthrop Hosp.

• Decision Date: 16 March 2021
• Docket Number: 2:18-cv-6737 (DRH) (SIL)
• Parties: ALLISON LABARBERA, Plaintiff, v. NYU WINTHROP HOSPITAL, Defendant.
• Court: U.S. District Court — Eastern District of New York

ALLISON LABARBERA, Plaintiff,
v.
NYU WINTHROP HOSPITAL, Defendant.

2:18-cv-6737 (DRH) (SIL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 16, 2021

MEMORANDUM AND ORDER

APPEARANCES

LEEDS BROWN LAW P.C.
Attorneys for Plaintiff
1 Old Country Road
Carle Place, NY 11514
By: Rick Ostrove, Esq.
Brandon Okano, Esq.

BAKER & HOSTETLER LLP
Attorneys for Defendants
45 Rockefeller Plaza, 14th Floor
New York, NY 10111
By: Amy J. Traub, Esq.
Amanda L. Van Hoose Garofalo, Esq.

HURLEY, Senior District Judge:

INTRODUCTION

This case concerns whether the Pregnancy Discrimination Act entitles pregnant women—absent complications, risk factors, or other pregnancy-related conditions—to a medical exemption from her employer's mandatory flu vaccination policy, which was adopted due to "a real question as to the usefulness of face masks, even when properly used, to prevent transmission [of infectious disease] from an infected person."¹ Plaintiff Allison LaBarbera ("Plaintiff") brings this action against

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her former employer, Defendant NYU Winthrop Hospital ("Defendant" or "Winthrop"), alleging her termination as a result of her non-compliance with the Mandatory Influenza Vaccination Program Policy (the "Policy") reflects discrimination against pregnant women through failure to accommodate, disparate treatment, and disparate impact violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (the "PDA"), and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296. Presently before the Court is Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff unfortunately fails to offer evidence in support of her prima facie case. For the reasons set forth below, Defendant's motion is GRANTED.

BACKGROUND

The following facts, taken from the parties' Local Rule 56.1 statements, are undisputed unless otherwise noted.² See Def.'s Rule 56.1 Statement of Undisputed Material Facts ("Def. 56.1") [DE 22-2]; Pl.'s 56.1 Counterstatement in Opp'n to Summary Judgment ("Pl. 56.1") [DE 22-51]; Def.'s Reply to Pl.'s Rule 56.1 Counterstatement of Facts ("Def. Reply 56.1") [DE 23].

I. Defendant's New Influenza Vaccination Policy

Defendant NYU Winthrop Hospital in Mineola, New York offers diagnostic and therapeutic care across nearly every specialty of medicine and surgery and provides a full suite of inpatient and outpatient services to many ill and immunocompromised

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patients. (Def. 56.1 ¶¶ 1, 3, 5). As a New York hospital, Winthrop is subject to state regulations that require, at a minimum, all healthcare personnel not immunized against the flu to wear a surgical mask during the flu season whenever they are in the vicinity of patients. (Id. ¶ 9 (citing 10 N.Y.C.R.R. 2.59(d))). The New York State regulation guidance identifies "a large body of evidence that healthcare workers can pose a risk to patients and residents by transmitting influenza infection" and that the regulation "protect[s] healthcare workers who are unvaccinated from acquiring influenza from patients and residents." (Id. ¶ 10 (citing Frequently Asked Questions (FAQ) Regarding Title 10, Section 2.59, https://www.health.ny.gov/diseases/communicable/influenza/seasonal/providers/prevention_of_influenza_transmission/docs/faq_flu_mask_requirements.pdf (last updated Jan. 2, 2015))). The regulation does not prohibit hospitals "from adopting policies that are more stringent than" the regulation. (Id. ¶ 11 (citing 10 N.Y.C.R.R. § 2.59(h))). Until late 2017, Defendant complied by requiring that all employees "either receive the flu vaccine[] or take a required education course and wear a mask in the hospital." (Jan. 4, 2018 Letter from President and CEO John F. Collins, Ex. M [DE 22-30] to Decl. of Derek Forte ("Forte Decl.") [DE 22-30]).

In late 2017, the Centers for Disease Control and Prevention ("CDC") reported a particularly severe flu season, with increases in illnesses, hospitalizations, and deaths. (Def. 56.1 ¶¶ 16-17). This prompted Defendant to adopt the Mandatory Influenza Vaccination Program Policy (the "Policy"), citing a "moral obligation" and a "commitment to protecting [its] patients," including "pregnant women[] and those

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with medical conditions that compromise immunity." (Id. ¶¶ 18, 20, 26-27; 2017-2018 NYU Winthrop Influenza Vaccination Flu FAQs, Ex. F [DE 22-40] to Declaration of Marlene Davis ("Davis Decl.") [DE 22-34]; Ex. M to Forte Decl.). Defendant states the Policy "was designed to ensure the highest quality of care," "to create the safest possible environment," and to maintain its reputation as "a leader in healthcare" and as a medical institution "holding itself to a higher standard than other[s]." (Def. 56.1 ¶ 19).

The Policy, effective September 2017, required every employee (not just those with access to patient care areas) to either get vaccinated by December 1, 2017 or apply for an exemption by November 1, 2017. (Def. 56.1 ¶¶ 18, 20, 26-27, 30, 33, 35-36; Aug. 15, 2017 Letter from President and CEO John F. Collins, Ex. E [DE 22-39] to Davis Decl.). The vaccination deadline was later extended to December 21, 2017. (Def. 56.1 ¶¶ 36, 39).

In previous years, Defendant gave its employees the option of wearing a mask as an alternative to vaccination. (Jan. 4, 2018 Letter from President and CEO John F. Collins, Ex. M to Forte Decl.). With the new Policy, however, Defendant no longer offered this option. (Mandatory Influenza Vaccination Program, Ex. A [DE 22-35] to Davis Decl.). Winthrop justifies this change by citing a "real question as to the usefulness of face masks, even when properly used, to prevent [flu] transmission from an infected person," as their effectiveness depends on "how [they are] worn, the duration of use, and the circumstances." (Def. 56.1 ¶¶ 14-15, 30 ("[S]urgical masks worn by unvaccinated individuals may not offer the same level of protection as the

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vaccine.")). Plaintiff contests the import of this supposed "real question," suggesting the relevant factors counsel against generalization, such as "the type of mask used" and the difference in use between the "general population[]" and "properly train[ed]" healthcare workers. (Pl. 56.1 ¶¶ 14-15). Winthrop replies, "[T]here is no convincing evidence that N95 respirators protect against the spread of flu," and highlights the difficulties (supply-wise, training-wise, efficacy-wise) in offering a mask alternative. (Def. Reply 56.1 ¶ 14).

To roll out the new Policy, Defendant provided a set of Frequently Asked Questions and Answers, held a "town hall meeting," and sent several email reminders. (Def. 56.1 ¶¶ 26-28, 33-35). Defendant also asked every employee to complete a Flu Vaccine Survey to disclose his or her intention to get the flu vaccine. (Id. ¶¶ 31-32, 123). The survey did not require employees to reveal which exemption they would seek (medical or religious) nor specify the basis therefor; "[t]o complete the Survey, employees simply indicated whether they were receiving the flu vaccine or whether they were requesting an exemption." (Id. ¶¶ 123-25; Davis Decl. ¶ 24).

Defendant offered, free of charge, four flu vaccines: Fluarix Quadrivalent, Flucelvax Quadrivalent, Fluzone Quadrivalent, and Flublok. (Davis Decl. ¶¶ 18, 38; Ex. O [DE 22-49] to Davis Decl.). Each vaccine's prescribing insert discloses risk summaries applicable to certain population groups, including one intended for pregnant women. (Ex. O to Davis Decl.). The dispute in this case is largely premised upon certain disclosures in each insert: "There are insufficient data on Fluarix

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Quadrivalent in pregnant woman to inform vaccine-associated risks," (id. at 14³); "There are, however, no adequate and well-controlled studies in pregnant women. Because animal reproduction studies are not always predictive of human response, this vaccine should be used during pregnancy only if clearly needed," (id. at 36 (Flucelvax Quadrivalent); id. at 58 (Fluzone Quadrivalent)); "Available data on Flublok administered to pregnant women are insufficient to inform vaccine-associated risks in pregnant women," (id. at 89).

Employees could seek an exemption from the Policy on religious or medical grounds. (Def. 56.1 ¶¶ 18, 37). Employees seeking a medical exemption had to submit both a Request for Medical Exemption from Influenza Vaccination form and, on "Attachment A," their healthcare provider's description of a medical contraindication to the flu vaccine. (Id. ¶¶ 38, 40, 132). An interdisciplinary team comprised of individuals across several hospital departments, the Influenza Vaccine Exemption Review Board ("IVERB"), reviewed and decided every exemption application. (Id. ¶¶ 21-22, 41). IVERB adopted the medical contraindication criteria from the CDC, requiring (1) a previous serious reaction or anaphylactic reaction to the flu vaccine; (2) a documented history of Guillain-Barré syndrome occurring within six weeks of receiving the flu vaccine; or, via a catch-all provision, (3) a medical condition preventing the employee from receiving the flu vaccine, accompanied by a medical provider's documentation as to the condition's nature, duration, and severity. (Id. ¶¶ 42-43). IVERB did not accept pregnancy, in and of itself, an acceptable

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medical contraindication, (Def. 56.1 ¶¶ 52-55, 57-58, 133, 188; see id. ¶¶ 51, 59-61), which aligned with the CDC's determination that "[p]regnant women may receive any licensed, recommended, age-appropriate influenza vaccine." (Prevention and Control of Seasonal Influenza with Vaccines: Recommendations of the Advisor Committee on Immunization Practices - United States, 2017-18 Influenza Season, Ex. C at 5, 8 [DE 22-37] to Davis Decl.; 2017-18 Summary of Recommendations, Ex. D at 1-2 [DE 22-38] to Davis Decl.; see also Def. 56.1 ¶¶ 56-57).

The IVERB team reviewing an exemption request could designate one member to contact the employee or her medical provider...