Ventresca-Cohen v. DiFiore
| Decision Date | 26 October 2022 |
| Docket Number | Index No. 901953-22 |
| Citation | 177 N.Y.S.3d 853 |
| Parties | In the Matter of the Application of Nicole VENTRESCA-COHEN, Steven Annunziata, Adrienne Asencio, Karen Boback, Richard Brink, Monica Bunce, Roxanne Buss, Fran-Marie Cheresnowsky, Donna Cichon, Suzette Colon, Jeannette Dantes, Danielle Davidson, Heather Dulaney, John Fleming, Patricia Hall, Jamie Hawley, Evelyn Herrera, Wanda Ingraham, Margaret McCormick, Emilce Mercuri, Victoria O'Donnell, Victoria Ososkalo, Jason Pashoukos, Noelle Platt, Meredith Pratt, Jamie Rahm, Alyssa Sullivan, Brian Wilson, and Marjorie Coons, Petitioners, v. Janet M. DIFIORE, as Chief Judicial Officer of the State and Chief Judge of the Court of Appeals; Lawrence K. Marks, as Chief Administrative Judge of the Courts; and the New York State Unified Court System, Respondents |
| Court | New York Supreme Court |
Civil Service Employees Association, Counsel's Office, Steven M. Klein, Esq., Attorneys for Petitioners, 143 Washington Avenue, Albany, New York 12210
Eileen D. Millett, Counsel, Office of Court Administration, Pedro Morales, Esq., Catherine Jakubik, Esq. Attorneys for Respondents, 25 Beaver Street, 11th Floor, New York, New York 10004
In this CPLR article 78 proceeding, petitioners challenge as arbitrary and capricious 29 separate determinations by respondents Janet M. DiFiore, as Chief Judge of the Court of Appeals; Lawrence K. Marks, as Chief Administrative Judge of the New York State Court; and the New York Unified Court System (hereinafter referred to collectively as UCS) denying petitioners’ requests for religious exemptions from its mandatory COVID-19 vaccination policy for non-judicial employees. UCS has answered, provided the administrative record, and filed an affidavit in support of their determinations. For the reasons that follow, the petition is granted to the extent that, with respect to certain petitioners, the matter is remitted for further determinations not inconsistent with this decision; the petition is otherwise denied.
During the COVID-19 pandemic, the Unified Court System adapted to evolving conditions and expert recommendations in an effort to keep New York's courts open and operative, safe for public users and employees alike. Toward that end, on or about August 25, 2021, UCS adopted and began to implement a mandatory vaccination policy. That policy required, among other things, that all non-judicial employees receive a vaccination against COVID-19 by September 27, 2021, unless exempted from the vaccine on medical or religious grounds.
To facilitate the review of exemption requests, UCS established a statewide Vaccination Exemption Review Committee and created an exemption application form. Any UCS employee who wished to request an exemption was required to complete and submit the application form, including an Affidavit of Religious Objection to COVID-19 Vaccination and Personal Statement Form, as well as any additional appropriate or necessary documentation to support the applicant's request. The application form required the individual to swear or affirm the truth of a series of statements about his or her religious beliefs — including a statement that the vaccination is contrary to a sincerely held religious belief and the objection to the vaccine is not solely based on grounds of personal concern, preference, or beliefs, inconvenience, or intellectual belief or philosophy. The application form also required the individual to swear or affirm that he or she was willing to comply with the requirements of the exemption program. The form provided a space for the applicant to provide "a personal written and signed statement detailing the religious basis for [the] objection, explaining why [he or she was] requesting [a] religious exemption, the religious principle(s) that guide [his or her] objections to vaccination, and the religious basis that prohibits the COVID-19 vaccination." Employees seeking exemption were required to submit their applications by September 27, 2021.
The Committee received applications from approximately 940 employees. Upon review of these applications, the Committee found the majority of the applicants’ religious objections were based upon: (1) the line of fetal cells derived from aborted fetuses having been used in the testing/manufacturing of the COVID-19 vaccine; and/or (2) the sanctity and purity of the applicant's body. But the Committee found that, in many cases, the applicants’ personal statements provided insufficient information to assess whether the proffered opposition was based on a sincerely held religious belief, as opposed to a personal, philosophical or safety concern. So UCS created a Supplemental Affidavit of Religious Objection to COVID-19 Vaccination form (hereinafter the Supplemental form or application). The Supplemental form provided information about and a list of common over-the-counter drugs, such as acetaminophen, ibuprofen, aspirin, Naproxen, and Tums, and prescription drugs, such as hydroxychloroquine and Levothyroxine, which use fetal cell lines in testing:
The Supplemental form then asked applicants to swear or affirm whether they: (1) had ever used any of the listed medications; (2) had used any of the listed medications in the past two years; and (3) would in the future use any of the listed medications, even if prescribed by a physician. If the answer to question (3) was yes, the Supplemental form asked for an explanation of how their willingness to use such medications in the future squares with their asserted religious beliefs. The Supplemental form also included questions about the applicants’ past and intended conduct regarding other vaccines, medical treatments and procedures, and foods.
In reviewing the applications, the Committee applied the following standards. With regard to whether a belief was considered religious, the Committee looked at whether "the belief attributes its source to God, a supreme being, or an ultimate concern — that is more than an intellectual belief, opinion, or preference — to which the applicant feels obligated to adhere in complete disregard to self-interest." And, in considering the sincerity of the proffered religious belief, the Committee considered, among other things, whether the applicant's past and intended behavior appeared consistent with the professed beliefs.
The Committee adopted a blind review policy, meaning the identity of the applicant and personal information was redacted from the forms presented for consideration. The applications were divided between two working groups for initial review. UCS's in-house counsel attended meetings of both working groups. A quorum of at least three working group members was required at each review meeting. A majority vote of the working group members present was required to grant an application. If the majority of a working group quorum voted to deny a religious exemption request, the application was referred to the full Committee for further review. A quorum of the full Committee meeting was five members. If a majority of a quorum of the full Committee voted for denial, the employee was notified in writing of the denial and directed to submit proof of receipt of the first dose of a COVID-19 vaccine within 10 days.
In total, the Committee reviewed 937 religious exemption applications. Of the 937 applicants, the "vast majority" were required to submit the Supplemental form. In all, the Committee granted 555 of these applications and denied 382 applications.1 Those who were granted exemptions were required to comply with alternative pandemic protective measures, such as masking, testing, and isolation.
On March 21, 2022, petitioners — 28 non-judicial employees — commenced this CPLR article 78 proceeding challenging as arbitrary and capricious UCS's denial of their applications for religious exemptions. An amended petition, filed April 26, 2022, added an additional petitioner whose application was similarly denied. In support of the petition and amended petition, petitioners submitted their own applications, as well as the applications of six "comparators" — non-judicial employees whose applications for religious exemptions were granted. Petitioners argue that the similarity between their applications and the comparators’ applications demonstrate that UCS's determination denying their applications was arbitrary and capricious and without a rational basis. Petitioners further argue that UCS provided "formulaic denial letters stating only that the individual's request for a religious exemption was considered and denied," which were "so bereft of detail that they prevented [p]etitioners from understanding why their requests were denied." And that UCS's failure to provide any detailed, specific reasons for its denials of petitioners’ 29 exemption requests rendered such denials arbitrary and capricious.
UCS filed an answer to the amended verified petition, a record of the application documents for each petitioner and comparator, and a supporting affidavit of Justin Barry, Chief of Administration of the New York State Office of Court Administration, who set forth the reason or reasons each petitioner's application for an exemption was denied, and the reason or reasons each comparator's application was granted. UCS also submitted a memorandum of law in opposition to the amended petition. Petitioners then submitted a brief in support of the amended petition and in reply.
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