O'Reilly v. Bd. of Educ. of the City Sch. Dist. of N.Y.
| Docket Number | 16688-, 16689-, 16690-, 16691,Index Nos. 161040/21, 160017/21, 160353/21, 161076/21,Case Nos. 2022-00684, 2022-00949, 2022-01398, 2022-01703 |
| Decision Date | 21 February 2023 |
| Citation | 213 A.D.3d 560,185 N.Y.S.3d 14 |
| Parties | In the Matter of Christine O'REILLY, Petitioner–Appellant, v. The BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK et al., Respondents–Respondents. In the Matter of Lucia Jennifer Lanzer, Petitioner–Appellant, v. The Board of Education of the City School District of the City of New York et al., Respondents–Respondents. In the Matter of Ingrid Romero, Petitioner–Appellant, v. The Board of Education of the City School District of the City of New York et al., Respondents–Respondents. In the Matter of Elizabeth Loiacono, Petitioner–Appellant, v. The Board of Education of the City School District of the City of New York et al., Respondents–Respondents. |
| Court | New York Supreme Court — Appellate Division |
Jimmy Wagner, Brooklyn, for appellants
Hon. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Jesse A. Townsend of counsel), for respondents.
Kapnick, J.P., Webber, Friedman, Gesmer, Singh, JJ.
Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered January 20, 2022, which granted respondents’ motion to dismiss petitioner Christine O'Reilly’s petition to annul the determination to place her on leave without pay and to vacate a September 10, 2021 arbitration award (Impact Award), order and judgment (one paper), same court (Lyle E. Frank, J.), entered on or about February 2, 2022, which denied petitioner Lucia Jennifer Lanzer's petition seeking the same relief, order and judgment (one paper), same court and Justice, entered February 2, 2022, which denied petitioner Ingrid Romero's petition seeking the same relief, and judgment (denominated an order), same court (Laurence L. Love, J.), entered April 13, 2022, denying petitioner Elizabeth Loiacono's petition seeking the same relief, each of which dismissed these hybrid proceedings brought pursuant to CPLR articles 75 and 78, affirmed, without costs.
We are asked on this appeal to decide whether tenured public school teachers are bound by the results of an arbitration initiated by their union, the United Federation of Teachers (UFT), pursuant to Civil Service Law § 209 to resolve an impasse over the implementation of the COVID–19 vaccine mandate. The September 10, 2021 Impact Award, which petitioners challenge in this hybrid article 75/ article 78 proceeding, established a procedure for handling requests for religious and medical exemptions. The article 75 claims were properly dismissed, as petitioners lack standing to challenge the Impact Award and failed to join UFT as a necessary party. The article 75 claims also fail on the merits. As to the article 78 claims, petitioners are unable to show that DOE made an error of law or acted irrationally.
This dispute arises from the vaccine mandate applicable to DOE employees for the 2021–2022 school year. The mandate was originally issued on August 24, 2021 by the Commissioner of the New York City Department of Health and Mental Hygiene (Health Commissioner). At that time, no vaccine had been fully approved for children under 16. The Health Commissioner's order required "all DOE staff" and other employees of the City and DOE contractors who work in person inside a school building to "provide proof to their employer no later than September 27, 2021, or prior to beginning employment" that they were fully vaccinated or in the process of becoming so. The Health Commissioner found "that a public health emergency within New York City continues, and that it is necessary for the health and safety of the City and its residents" to require full vaccination.
As Supreme Court properly found in each proceeding, the requirement that every DOE employee be vaccinated against COVID–19 — imposed by the vaccine mandate underlying these proceedings, the validity of which petitioners do not challenge here — is a "qualification of employment unrelated to job performance, misconduct, or competency" ( Broecker v. New York City Dept. of Educ., 585 F. Supp. 3d 299, 318 [E.D.N.Y.2022] ; see Matter of Beck–Nichols v. Bianco, 20 N.Y.3d 540, 558–559, 964 N.Y.S.2d 456, 987 N.E.2d 233 [2013] ; see also We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 287 [2d Cir. 2021], clarified 17 F.4th 368 [2d Cir. 2021], cert denied ––– U.S. ––––, 142 S. Ct. 2569, 213 L.Ed.2d 1126 [2022] ).
UFT sought to negotiate the mandate's implementation with the DOE pursuant to their "mutual obligation" to "confer in good faith with respect to wages, hours, and other terms and conditions of employment," since the mandate was not part of the collective bargaining agreement (CBA) then in force ( Civil Service Law § 204[3] ; see Matter of Roma v. Ruffo, 92 N.Y.2d 489, 494, 683 N.Y.S.2d 145, 705 N.E.2d 1186 [1998] ). These negotiations included, for example, UFT's request for religious and medical accommodations. On September 1, 2021, UFT submitted a declaration of impasse to the State Public Employee Relations Board due to several unresolved issues, including placement of unvaccinated employees on leave without pay. As required by the Civil Service Law, the Public Employment Relations Board appointed a mediator, who spent several days attempting to resolve the dispute (see Civil Service Law § 209[3][a] ). When the UFT and DOE continued to disagree on many issues, the parties agreed to arbitrate those issues before their former mediator (see Civil Service Law § 209[2], [3] ).
On September 10, 2021, the arbitrator issued the Impact Award. He noted that the mandate "did not expressly provide for exceptions or modifications for those with any medical counterindications to vaccination or sincerely-held religious objections to inoculation." He set an expedited review process as "an alternative to any statutory reasonable accommodation process," effective immediately, but applicable "only to ... religious and medical exemption requests" and to "medical accommodation requests" for off-site or remote work "where an employee is unable to mount an immune response" after vaccination "due to preexisting immune conditions." The Impact Award required exemption applications to be filed by September 20, 2021, set standards for approvals and procedures for expedited hearings, and allowed temporary relief while proceedings were pending.
Under the Impact Award, an employee granted an exemption or accommodation would be permitted to remain on the payroll, but would not be allowed "to enter a school building while unvaccinated, as long as the vaccine mandate is in effect," and "may be assigned to work outside of a school building ... to perform academic or administrative functions ..." However, as relevant here:
"Any unvaccinated employee who has not requested an exemption ... or who has requested an exemption which has been denied, may be placed by the DOE on leave without pay effective September 28, 2021, or upon denial of appeal, whichever is later, through November 30, 2021. Such leave may be unilaterally imposed by the DOE and may be extended at the request of the employee consistent with [procedures set forth] below. Placement on leave without pay for these reasons shall not be considered a disciplinary action for any reason "(emphasis added).
Employees placed on leave without pay continued to be eligible for health insurance, but were prohibited from engaging in gainful employment during the leave period. If they became vaccinated during the leave period and provided proof by November 30, 2021, they would have a right of return to the same school within one week of submitting proof.
Between September 28 and October 29, 2021, employees on leave without pay could opt to "separate" from the DOE by filling out a form "which includes a waiver of the employee's rights to challenge the employee's involuntary resignation, including, but not limited to, through a contractual or statutory disciplinary process." If choosing this option, these employees would be "deemed to have resigned involuntarily ... for non-disciplinary reasons" and "shall continue to be eligible for health insurance through September 5, 2022, unless ... eligible ... from another source".
Alternatively, between November 1 and 30, 2021, employees on leave without pay could opt to extend their leave and retain their benefits by executing a different form "which includes a waiver of the employee's rights to challenge the employee's voluntary resignation, including, but not limited to, through a contractual or statutory disciplinary process." Under this option, employees "shall continue to be eligible for health insurance through September 5, 2022." If they became vaccinated and sought to return, giving the DOE notice before September 5, 2022, they "shall have a right to return to the same school as soon as is practicable" within two weeks. However, employees who extended leave but "have not returned by September 5, 2022, shall be deemed to have voluntarily resigned." "Beginning December 1, 2021, the DOE shall seek to unilaterally separate employees who have not opted into separation under" either option.
On September 15, 2021, the Health Commissioner issued an updated vaccine mandate, finding the same "public health emergency" as before, and again requiring all "DOE staff" and employees of other agencies, charter schools, and contractors, to "provide proof of vaccination" to their respective employers "[n]o later than September 27, 2021, or prior to beginning employment." The updated mandate noted the City's commitment to "safe, in-person learning in all pre-school to grade 12 schools," which serve many students too young to be vaccinated. It also added a new provision: "Nothing in this Order shall be construed to prohibit any reasonable accommodations otherwise required by law." In addition, it extended the deadline to October 1, 2022.
Petitioners are similarly situated teachers employed...
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