N.Y.C. Mun. Labor Comm. v. City of N.Y.
| Decision Date | 21 April 2022 |
| Docket Number | Index No. 151169/2022 |
| Citation | 75 Misc.3d 411,167 N.Y.S.3d 374 |
| Parties | The NEW YORK CITY MUNICIPAL LABOR COMMITTEE, Uniformed Sanitationmen's Association, Local 831 IBT, Police Benevolent Association, Uniformed Firefighters Association Local 94 I.A.F.F. AFL-CIO, Uniformed Fire Officers Association, United Federation of Teachers, Council of School Supervisors and Administrators, International Brotherhood of Teamsters, Local 237, IBT, Correction Officer's Benevolent Association, Communication Workers of America NYC Local 1180, Service Employees International Union, Local 246, Lieutenants Benevolent Association, Sergeant's Benevolent Association, Detectives Endowment Association, Captains Endowment Association, Sanitation Officers’ Association, Local 444, Uniformed Sanitation Chiefs Association, International Union of Operating Engineers, Local 30, District Council No. 9 Painters & Allied Trades, International Brotherhood of Electrical Workers, Local 3, International Union of Operating Engineers, Local 891, Service Employees International Union, Local 300, Boilermakers, Blacksmiths & Metal Work Mechanics, Local 5, Service Employees International Union Supervisors, Local 621, Organization of Staff Analysts, N.Y.C. District Council of Carpenters, UBCJA, Correction Captains’ Association, Inc., United Probation Officers Association, Allied Building Inspectors, Local 211, Plaintiff, v. The CITY OF NEW YORK, Board of Education of the City School District of the City of New York, the New York City Housing Authority, Defendant. |
| Court | New York Supreme Court |
Plaintiffs’ Counsel: Stroock & Stroock & Lavan LLP, 180 Maiden Lane New York, New York 10038, Alan M. Klinger, Esq.,Dina Kolker, Esq., Arthur J. Herskowitz, Esq., Greenberg Burzichelli Greenberg P.C., 3000 Marcus Avenue, Suite 1W7 Lake Success, New York 11042, Harry Greenberg, Esq.
Defendant's Counsel: For the City of New York and Board of Education of the City School District of the City of New York, New York City Law Department, 100 Church St, New York, NY 10007, Andrea O'Connor, Esq. Assistant Corporation Counsel
Defendant's Counsel: For the New York City Housing Authority, NYC Housing Authority Law Department, 90 Church St Fl 11, New York, NY 10007, Alexander Seth Yellen, Esq., Nancy Marie Harnett, Esq.
On August 24, 2021, Dr. Dave A. Chokshi, Commissioner of the New York City Department of Health and Mental Hygiene ("DOHMH"), issued an order requiring all employees of defendant the Board of Education of the City School District of the City of New York ("DOE") to submit proof of their COVID-19 vaccination
by September 27, 2021(the "DOE Order"). In response, certain of the plaintiffs here — i.e., the United Federation of Teachers ("UFT"), the Council of School Supervisors and Administrators ("CSA"), Teamsters Local 237, and the International Union of Operating Engineers ("IUOE") Local 891 — engaged in bargaining with the DOE as to the implementation of the DOE Order, which led to an arbitration proceeding before Arbitrator Martin F. Scheinman. At the conclusion of the arbitration proceeding, Mr. Scheinman issued binding awards (the "Awards"), which provided, as relevant here, that unvaccinated employees who did not receive a medical or religious accommodation exempting them from the DOE Order could elect to either separate from service with an incentive and retain health benefits through September 5, 2022, or remain on an extended unpaid leave through September 5, 2022 while receiving health benefits (NYSCEF Doc. Nos. 3, 4, 19, 20). The Awards further provided that, beginning on December 1, 2021, the DOE would seek to unilaterally separate those unvaccinated employees who had not already separated from service (Id. ).
On October 20, 2021, Commissioner Chokshi issued another order directing all employees of defendant the City of New York (the "City"), with certain exceptions inapplicable here, to submit proof of their COVID-19 vaccination
on or before October 29, 2021 (the "City Order"). Any City employee who did not provide this proof would be excluded from their respective workplaces beginning on November 1, 2021.
Following the City Order, certain other plaintiffs — i.e., District Council 37, the Uniformed Sanitationmen's Association, the Uniformed Sanitation Officers Association, the Uniformed Sanitation Chiefs Association, Teamsters Local 237, Communications Workers of America Locals 1180, 1181, and 1182, the Organization of Staff Analysts, the Civil Service Bar Association, the United Probation Officers Association, the Fire Alarm Dispatchers Benevolent Association, the Deputy Sheriffs Association, the New York State Nurses Association, Doctor's Council SEIU, SE1U Locals 246, 300, and 621, International Brotherhood of Electrical Workers Local 3, Boilermakers Local Lodge 5, New York City District Council of Carpenters, IUOE Locals 15 and 30, Locals 1969 and 806 of Painters District Council 9, Plumbers Local 1, Steamfitters Local 638, and the International Organization of Masters, Mates, and Pilots — entered into negotiations with defendants which resulted in separate memoranda of agreement1 ("MOA").
The MOAs, like the Awards, provided that unvaccinated employees who had not received medical or religious exemptions from the DOE Order or City Order could elect to separate from service with an incentive and retain health benefits or remain on an extended unpaid leave through a date certain while receiving health benefits (NYSCEF Doc. No. 5-16). The MOAs also provided that, beginning on December 1, 2021, the City would seek to unilaterally separate any unvaccinated employee without an exemption (Id. ). The Awards and MOAs also set forth procedures for unvaccinated employees to apply for exemptions from the City's vaccination
mandate and the procedure for appealing any denial of their application (NYSCEF Doc. Nos. 3-16).
On January 31, 2022, the City issued termination letters to approximately 4,000 employees who had not submitted proof of vaccination
and had not received a medical or religious exemption notifying them that their employment and health insurance coverage would be terminated on February 11, 2022.
Plaintiffs commenced this action on February 8, 2022 — two days before the scheduled termination of these employees — seeking a declaratory judgment that the termination of these employees violated their procedural due process rights and a permanent injunction preventing defendants from terminating these unvaccinated employees. Concurrent with their commencement of this action, plaintiffs filed an order to show cause seeking a temporary restraining order and preliminary injunction granting the relief demanded in their complaint. The order to show cause was received by the Court on February 10, 2022 and granted without a temporary restraining order on the same day.
On February 11, 2022, the City terminated 1,328 unvaccinated employees who had not received necessary exemptions (the "Terminated Employees") (NYSCEF Doc. No. 56 [Pollack Affirm. at ¶8]).
Thereafter, oral argument on the instant motion was held on March 1, 2022, after which the Court reserved decision. For the reasons set forth below, plaintiffs’ motion is denied.
In light of the fact that the terminations at issue have already been carried out, plaintiffs’ motion effectively seeks a mandatory injunction restoring the Terminated Employees to their former employment. To establish their entitlement to injunctive relief on this motion, plaintiffs must therefore show a "clear and substantial likelihood of success on the merits" ( Quinn v. Cuomo , 69 Misc. 3d 171, 175, 126 N.Y.S.3d 636 [Sup. Ct., Queens County 2020], affd as mod , 183 A.D.3d 928, 125 N.Y.S.3d 120 [2d Dept. 2020] ) as well as "immediate and irreparable harm absent injunctive relief" and that "a balancing of the equities favors the movant's position" ( Nobu Next Door, LLC v. Fine Arts Hous., Inc. , 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191 [2005] ). Plaintiffs have not satisfied this standard.
Plaintiffs have not established a clear and substantial likelihood of success on their procedural due process claim. "A procedural due process claim requires the plaintiff to establish (1) possession by the plaintiff of a protected liberty or property interest, and (2) deprivation of that interest without constitutionally adequate process" ( Garland v. New York City Fire Dept ., ––– F.Supp.3d ––––, ––––, 2021 WL 5771687 at *5 [E.D.N.Y. 2021] [internal citations omitted]). It is undisputed that the Terminated Employees are public employees who have a constitutionally protected property interest in their continued employment (See Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 [1985] ). The parties disagree, however, as to what process is constitutionally adequate to deprive them of that employment.
Plaintiffs argue that the procedural due process rights of the Terminated Employees were violated by the defendants’ failure to follow the disciplinary procedures set forth in Civil Service Law §§ 72, 73 and 75, Education Law §§ 3020 and 3020-a, and New York City Administrative Code §§ 14-115, 15-113, and 16-106, as well as the plaintiffs’ respective collective bargaining agreements, prior to their termination. Defendants respond that, under New York law, the termination of a public employee based on the employee's failure to satisfy a qualification of employment unrelated to job performance, misconduct, or competency does not implicate the disciplinary procedures suggested by plaintiffs (See e.g. , Matter of Felix v. New York City Dept. of Citywide Admin. Services , 3 N.Y.3d 498, 505-06, 788 N.Y.S.2d 631, 821 N.E.2d 935 [2004] ; Matter of New York State Off. of Children and Family Services v. Lanterman , 14 N.Y.3d 275, 282, 899 N.Y.S.2d 726, 926 N.E.2d 233 [2010] ) and that the vaccinate mandate put in place by...
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Kambouris v. N.Y.C. Dep't of Educ. of N.Y.
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