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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