Maniscalco v. N.Y.C. Dep't of Educ.

• Decision Date: 23 September 2021
• Docket Number: 21-cv-5055 (BMC)
• Citation: 563 F.Supp.3d 33
• Parties: Rachel MANISCALCO, Evelyn Arancio, Diana Salomon and Corinne Lynch, individually and for all others similarly situated, Plaintiffs, v. The NEW YORK CITY DEPARTMENT OF EDUCATION, Meisha Porter, Schools Chancellor of the New York City Department of Education, in her official capacity, The City of New York, Bill de Blasio, Mayor of New York City, in his official capacity, Department of Health and Mental Hygiene, and Dave Chokshi, Commissioner of the Department of Health and Mental Hygiene, in his official capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

563 F.Supp.3d 33

Rachel MANISCALCO, Evelyn Arancio, Diana Salomon and Corinne Lynch, individually and for all others similarly situated, Plaintiffs,

v.The NEW YORK CITY DEPARTMENT OF EDUCATION, Meisha Porter, Schools Chancellor of the New York City Department of Education, in her official capacity, The City of New York, Bill de Blasio, Mayor of New York City, in his official capacity, Department of Health and Mental Hygiene, and Dave Chokshi, Commissioner of the Department of Health and Mental Hygiene, in his official capacity, Defendants.

21-cv-5055 (BMC)

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

Signed September 23, 2021

Louis M. Gelormino, Helbock, Nappa & Gallucci, Mark J. Fonte, Staten Island, NY, for Plaintiffs.

Amanda Croushore, Lora Minicucci, New York City Law Department, Labor & Employment Division, New York, NY, for Defendants.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Defendants are city entities and officials responsible for enacting and enforcing an Order mandating vaccination for New York City Department of Education ("DOE") employees as well as employees and contractors who work in-person in DOE school settings or buildings. Plaintiffs, a group of such employees, seek a preliminary injunction enjoining defendants from enforcing the Order. Plaintiffs claim that the Order violates their substantive due process and equal protection rights under the Fourteenth Amendment of the United States Constitution. Additionally, plaintiffs allege that the Order is an arbitrary and capricious action, made in violation of lawful procedure, under N.Y. C.P.L.R. § 7803(3). Because plaintiffs have not shown a likelihood of success on the merits, and for the other reasons set forth below, plaintiffs’ motion for a preliminary injunction is denied.

BACKGROUND

I. Factual Background

In August 2021, the Commissioner of the New York City Department of Health and Mental Hygiene ("DOHMH") issued an Order requiring that all DOE staff, City employees, contractors who "work in-person in a DOE school setting or DOE building", and "[a]ll employees of any school serving students up to grade 12 and any UPK-3 or UPK-4 program that is located in a DOE building who work in-person, and all contractors hired by such schools or programs to work in-person" ("DOE employees") submit proof of at least one dose of vaccination for COVID-19 by September 27, 2021. The Order does not permit DOE employees to undergo weekly testing in lieu of vaccination, although DOHMH orders applicable to other City employees allow such an opt-out.

On September 15, 2021, the DOHMH rescinded and restated its prior Order. The updated Order provides clarity on a few issues, including its application to both charter schools and certain categories of visitors. Additionally, it states that "[n]othing in this Order shall be construed to prohibit any reasonable accommodations otherwise."¹

II. Procedural Background

Plaintiffs are teachers and paraprofessionals employed by the DOE who bring suit challenging the Order on behalf of themselves and similarly situated DOE employees. Plaintiffs assert a variety of reasons for not wishing to be vaccinated, including concern over the long-term effects of a newly developed vaccine. A subclass of plaintiffs allege that they have developed antibodies and therefore should not be required to be vaccinated on that basis.

Plaintiffs bring three claims. First, they maintain that the Order violates their right to substantive due process under the Due Process Clause of the Fourteenth Amendment. Specifically, plaintiffs allege that the Order interferes with their right to pursue their chosen profession and that they stand to lose their "health benefits, their jobs, or their seniority" if the mandate is enforced. Second, plaintiffs maintain that the Order violates the Equal Protection Clause of the Fourteenth Amendment, as it is based on a distinction between DOE employees and other municipal employees who may opt out of the vaccine mandate through weekly testing. Third, plaintiffs ask that the Court vacate the Order pursuant to N.Y. C.P.L.R. § 7803(3).

DISCUSSION

In this Circuit, "[a] party seeking a preliminary injunction must generally show a likelihood of success on the merits, a likelihood of irreparable harm in the absence of preliminary relief, that the balance of equities tips in the party's favor, and that an injunction is in the public interest." Am. C.L. Union v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015) (quotations and citations omitted). "In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm." Ferreyra v. Decker, 456 F. Supp. 3d 538, 549 (S.D.N.Y. 2020) ; see also Statharos v. New York City Taxi & Limousine Comm'n, 198 F.3d 317, 322 (2d Cir. 1999). Because plaintiffs allege that their substantive due process rights have been violated, "no further showing of irreparable injury is necessary." Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984). Therefore, I will focus my analysis on the other factors, namely the likelihood of success on the merits.

I. Plaintiffs’ Substantive Due Process Claim

a. Likelihood of Success on the Merits

"Substantive due process rights safeguard persons against the government's exercise of power without any reasonable justification in the service of a legitimate governmental objective." Southerland v. City of New York, 680 F.3d 127, 151 (2d Cir. 2012) (internal quotation marks and citation omitted). To analyze a claim under substantive due process, courts perform a two-step analysis. Hurd v. Fredenburgh, 984 F.3d 1075, 1087 (2d Cir. 2021).

"The first step in substantive due process analysis is to identify the constitutional right at stake." Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995). Not all rights are entitled to protection. Only rights that are fundamental or implicit in the concept of ordered liberty are accorded protection under substantive due process. See generally Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ; Hurd, 984 F.3d at 1088.

Plaintiffs assert that the Order deprives them of their "right to pursue their profession."² The Supreme Court "has indicated that the liberty component of the Fourteenth Amendment's Due Process Clause includes some generalized due process right to choose one's field of private employment." Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). This right is "subject to reasonable government regulation." Id. at 92 ; see, e.g., Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889) (upholding a requirement of licensing before a person can practice medicine). To "rise to the level of a violation of the Fourteenth Amendment's liberty right to choose and follow one's calling," government regulation must result in more than a "brief interruption." Id. "Instead, the Supreme Court, [the Second] Circuit, and the other Circuits addressing the issue have all indicated that the right of occupational choice is afforded Due Process protection only when a plaintiff is completely prohibited from engaging in his or her chosen profession." Hu v. City of New York, 927 F.3d 81, 102 (2d Cir. 2019) (quotations and citations omitted). Courts in this Circuit have held that unless the defendants denied plaintiff "all opportunities to practice" in a chosen profession, then there was no substantive due process violation, even if the defendants’ "actions made it more difficult" to do so. Marino v. City Univ. of New York, 18 F. Supp. 3d 320, 340 (E.D.N.Y. 2014).³

Here, the Order may ultimately disqualify plaintiffs from employment in their positions at public schools in New York City, but "the Due Process Clause secures the liberty to pursue a calling or occupation, and not the right to a specific job." Parsons v. Pond, 126 F. Supp. 2d 205, 207 (D. Conn. 2000) (citations and quotations omitted). Plaintiffs’ contention that they may not find alternative means of pursuing their profession as appealing or convenient for a variety of reasons is well taken. However, although defendants may render it more difficult for them to pursue their calling, plaintiffs are not absolutely being barred from doing so. For example, plaintiffs may pursue teaching or paraprofessional jobs at private schools in New York City, public and private schools outside of New York City, daycares or early childhood education centers, tutoring centers, adult or continuing education centers, virtual institutions, or within home settings. Therefore, plaintiffs are not being denied their fundamental right to pursue their profession.

Further, any property right to employment that plaintiffs may claim does not rise to the level of a fundamental right protected by substantive due process. Generally, property interests related to employment are not among protected fundamental rights, nor are "simple, state-law contractual rights, without more." Walker v. City of Waterbury, 361 F. App'x 163, 165 (2d Cir. 2010) (summary order) (quotations omitted). Neither is there a fundamental right to continued public employment. Martin v. Town of Brattleboro, No. 07-cv-260, 2008 WL 4416283, at *2 (D. Vt. Sept. 24, 2008) (noting that "most Circuit Courts of Appeal have declined to find that a right to continued public employment is a fundamental property interest entitled to substantive due process protection").

Even if I agreed that plaintiffs’ rights to pursue their profession or to continued employment were fundamental rights, plaintiffs’ arguments still fail at the second step of the analysis. Here, plaintiffs "must demonstrate that the state action was so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience" such that the Due Process Clause "would not countenance it even were it accompanied by full procedural protection." Hurd, 984 F.3d at 1087 (internal quotation marks and citation omitted). Plaintiffs cannot meet that burden.

In Jacobson...