Opinion
22-cv-6951 (LJL)
07-24-2024
SHARME CAGLE, Plaintiff, v. WEILL CORNELL MEDICINE, Defendant.
OPINION AND ORDER
LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE
Pro se plaintiff Sharme Cagle (“Plaintiff” or “Cagle”) brings this action alleging violations of her constitutional rights pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), violations of Title VII of the Civil Rights Act of 1964 and violations of Title I of the Americans with Disabilities Act of 1990 by Defendant Cornell University, sued as Weill Cornell Medicine (“Defendant” or “Cornell”). Dkt. No. 17 (“Amended Complaint” or “AC”). Plaintiff alleges that Defendant discriminated against her based on her religious beliefs and practices and illegally terminated her from her position as a practical nurse. Id. Defendant now moves, pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the Amended Complaint. Dkt. No. 18. Plaintiff has also moved for leave to file a second amended complaint. Dkt. No. 24.
The Amended Complaint appears to newly name Cornell employees Andrew Crawford, Laura Alonso, and Jennifer Alberto as defendants. AC at ECF p. 9. However, there is no indication that these individuals have been served with process nor are there any allegations about them in the Amended Complaint, other than a reference to Crawford having asked Plaintiff if she intended to get vaccinated and telling her the consequences that would occur if she did not. Id. at ECF p. 3. Granting Plaintiff leave to serve these putative defendants and amend her complaint to properly allege claims against them would be futile given the Court's determination of the merits of Plaintiff's claim. See, e.g., Warshun v. N.Y.Cmty. Bancorp., Inc., 957 F.Supp.2d 259, 265 (E.D.N.Y. 2013) (denying leave to amend to add claims against new individual defendants where they were not properly served because it would be futile). In particular, the ADA and Title VII claims cannot be brought against individuals. See Id. And the Court's reasoning in denying the constitutional claims, i.e., that there is no state action, would apply equally to the individual defendants.
For the following reasons, the motion to dismiss is granted and the motion for leave to file a second amended complaint is denied.
BACKGROUND
The Court assumes the truth of the well-pleaded allegations of the pro se Amended Complaint construing them broadly and liberally, so as to raise the strongest arguments they suggest. See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007); Weixel v. Bd. of Educ. of City of N. Y., 287 F.3d 138, 146 (2d Cir. 2002); Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000).
Plaintiff was a nurse at Weill Cornell Medicine. AC at ECF pp. 2-3. Defendant asserts, and Plaintiff does not dispute, that Plaintiff was a licensed practical nurse in the Department of Endocrinology at Cornell. Dkt. No. 19 at ECF p. 8. Plaintiff alleges that she was improperly terminated on September 1, 2021, after returning from FMLA leave on or around August 19, 2021. AC at ECF pp. 2-3. Upon returning to the office in August 2021, personnel at the hospital asked Plaintiff if she would be getting a COVID-19 vaccine and informed her of the consequences of not becoming vaccinated. Id. at ECF p. 3. Plaintiff immediately contacted Human Resources to request more time and guidance on submitting a religious exemption. Id. at ECF p. 4. Plaintiff received a response from Human Resources on August 31, 2021, which was one day before the deadline for all employees to become vaccinated, which stated that the deadline to request a religious exemption had passed and that all employees must submit proof of vaccination or be placed on unpaid lead until submission of proof of vaccination. Id.
Attached to the Amended Complaint is a letter dated March 4, 2022 from Plaintiff to the New York State Division of Human Rights, titled “Notice of Non-Evidence,” in which Plaintiff states: “Due to my religious beliefs, my research on vaccination ingredients, and the harm it can cause accumulative, to my holy temple, and my ethical and moral standings as well; led by the spiritual guidance of my GOD and the creator of the divine source. My spouse, and I decided for our entire family to no longer allow foreign substances into our holy temples. since January 2015. Id. at 17. Plaintiff's letter later continues: “My status is that to allow for any foreign substances to enter my holy temple is against my religion. [. . .] I believe in sacred self-healing sacraments such as therapeutic fasting, meditation, and food as my medication.” Id. at 19. She attaches a letter from her pastor stating that “the practice of vaccination is contrary to [Plaintiff's] sincere and conscientiously held religious beliefs and practices and violates the free exercise of these principles.” Id. at 22. The “Notice of Non-Evidence” has various exhibits, including the letter from Cagle's pastor, a vaccination exemption affidavit, copies of various laws, bible quotes, notices regarding COVID-19 vaccines, and emails between Cagle and Weill Cornell Medicine. Id. at pp. 19-66.
PROCEDURAL HISTORY
Plaintiff initiated this action by filing a complaint against Defendant on August 15, 2022. Dkt. No. 2. In her initial complaint, Plaintiff explicitly pleaded that Weill Cornell Medicine violated her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, (“Title VII”) and Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 et seq. (“ADA”), by discriminating against her for her “religious beliefs” and “religious practices of non-vaccination.” Id. Defendant filed a motion to dismiss on March 20, 2023. On April 6, 2023, Plaintiff filed a document titled “Letter re Objection to Motion to Dismiss,” which stated, “I am objecting to the motion to dismiss from the respondent due to respondent not answering the affidavit of fact/proof of claim that was submitted into the record with the initial proof of claim.” Dkt. No. 14. On April 10, 2022, the Court issued an endorsement stating: “Under Federal Rule of Civil Procedure 12, a defendant may serve a pre-answer motion to dismiss instead of serving a responsive pleading. Defendant served a pre-answer motion to dismiss for failure to state a claim on March 20, 2023.” See Dkt. No. 15. The Court sua sponte extended Plaintiff's time to respond to Defendant's motion to dismiss to April 30, 2023, at risk of the Court treating Defendant's motion to dismiss as unopposed. Id. Plaintiff did not submit a response. The Court therefore treated Defendant's first motion to dismiss as unopposed and granted that motion on June 30, 2023, without prejudice to Plaintiff filing an amended complaint within 60 days. Dkt. No. 16. The Court ruled that Plaintiff had not stated a claim under Title VII because she did not allege any non-conclusory facts about her religious beliefs that would conflict with a vaccination requirement and that on the face of her complaint, her request for an exemption would impose an undue burden on Defendant, that Plaintiff had not alleged a disability under Title I of the ADA, and that her complaint did not make out the elements of the New York tort for intentional infliction of emotional distress. Id. at 7-8, 10, 11, 13. The Court gave Plaintiff leave to replead based on her pro se status, noting that it was possible that Plaintiff might be able to allege facts supporting her religious belief, that she did not fall within the category of personnel under the New York Department of Health's August 26, 2021 mandate, N.Y. COMP. CODES R. & REGS. tit. 10, § 2.61 (2021) (“Section 2.61”), and that she made a request that her employer accommodate her religious objections. Id. at 15.
Plaintiff filed the Amended Complaint on September 26, 2023. On October 17, 2023, Defendant moved to dismiss the Amended Complaint. Dkt. Nos. 18-19. On November 6, 2023, Defendant filed a reply memorandum of law in further support of its motion to dismiss, along with a supporting declaration. Dkt. No. 21-22. One of the exhibits to the declaration is a letter from Plaintiff to Defendant titled “Affidavit of Fact” received by Defendant on October 30, 2023. Dkt. No. 22-1. On November 15, 2023, Plaintiff submitted a letter expressing that she had misunderstood the sixty-day deadline for filing her Amended Complaint and thus it was inadvertently filed past that deadline. Dkt. No. 24. Plaintiff also requested the opportunity to file a second amended complaint. Id. On November 17, 2023, Defendant responded to Plaintiff's letter noting that while the late filing was a “technical basis for dismissal,” the delay had not caused it any particular prejudice. Dkt. No. 26. The Court issued an endorsement on November 20, 2023, stating that “Because Plaintiff has responded to the substance of Defendant's motion to dismiss by submitting an ‘Affidavit of Fact,' Dkt. No. 22-1, the Court understands the parties' filings regarding the motion to dismiss to be fully submitted. The Court will address the amended complaint and motion to dismiss on their merits given Defendant's admission that it incurred no prejudice from Plaintiff's untimely filing of the amended complaint. The Court will address Plaintiff's motion for leave to file a second amended complaint after it addresses Defendant's motion to dismiss the amended complaint.” Dkt. No. 27. Neither party objected.
LEGAL STANDARD
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, a complaint must include “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must offer more than “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement” in order to survive dismissal. Twombly, 550 U.S. at 555, 557. The ultimate question is whether “[a] claim has facial plausibility, [i.e.,] the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Put another way, the plausibility requirement “calls for enough fact to raise a reasonable expectation that discovery will reveal evidence [supporting the claim].” Twombly, 550 U.S. at 556; see also Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 46 (2011). However, while the Court construes pro se pleadings liberally, pro se plaintiffs are not relieved of the requirement that they plead enough facts so that their claims are plausible. See Wee Saidin v. N.Y.C. Dep't of Educ., 498 F.Supp.2d 683, 687 (S.D.N.Y. 2007) (“[P]ro se status does not relieve a plaintiff of the pleading standards otherwise prescribed by the Federal Rules of Civil Procedure.”).
DISCUSSION
Plaintiff alleges that Defendant discriminated against her by terminating her employment as a nurse based on her refusal to receive the COVID-19 vaccine. Plaintiff alleges that in doing so, Defendant violated Title VII, the ADA, and her constitutional rights. In response, Defendant argues that Plaintiff never informed it of any religious belief, that she fails to allege she was actually disabled, that no reasonable accommodation was possible, and that Cornell is not a state actor.
I. Title VII Claim
Title VII prohibits employers from discriminating against employees on the basis of religion. 42 U.S.C. § 2000e-2(a)(1). The statute directs an employer to “reasonably accommodate” an employee's “religious observance or practice,” unless such accommodations would impose “undue hardship on the conduct of the employer's business.” Id. § 2000e(j). To make out a prima facie case of religious discrimination under Title VII through a failure to accommodate, an employee must demonstrate that (1) she had a bona fide religious belief conflicting with an employment requirement, (2) she informed her employer of this belief, and (3) was disciplined for failing to comply with the employment requirement. See Knight v. Conn. Dep't of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001). If the employee states a prima facie case, the burden shifts to the employer to show that it either offered the employee a reasonable accommodation or that doing so would cause an undue burden. See Baker v. Home Depot, 445 F.3d 541, 546 (2d Cir. 2006). An accommodation presents an undue burden when the “accommodation would result in substantial increased costs in relation to the conduct of [an employer's] particular business.” Groff v. DeJoy, 600 U.S. 447, 470 (2023).
Plaintiff alleges that she had a bona fide religious belief preventing her from receiving the COVID-19 vaccine and that she was nevertheless terminated for failing to proffer proof of vaccination. Defendant argues that Plaintiff never informed it of her religious belief before she was terminated because Plaintiff never provided Defendant with the religious exemption letters from her pastor nor vaccination exemption affidavit she now attaches to her Amended Complaint. Dkt. No. 19 at ECF p. 10. Defendant also argues that even if it had been informed of Plaintiff's religious beliefs, no reasonable accommodation was available. Id. at ECF pp. 1013.
The Court invited Plaintiff to identify whether she requested an accommodation. Dkt No. 16 at 15. Plaintiff has not taken the Court up on that invitation. The most that she alleges is that she was one of three permanent nurses who rotated being physically present and that earlier in the pandemic the permanent nurses, while in person, practiced social distancing, used face coverings, and took standard precautions related to infection control to maintain the safety of patients and employees. AC at ECF pp. 2-3. She states that her job was 80% “administrative” and 20% direct patient care. Id. at ECF p. 3. And she asserts that this “accommodation” could
have continued. Id. But, if Plaintiff means to say that Defendant was obligated to let Plaintiff continue in her job while being unvaccinated, that “accommodation” is really an exemption. She asserts that Defendant should have simply excused her from the otherwise applicable rules while she remained patient-facing. Cf. St. Hillaire v. Montefiore Medical Ctr., 2024 WL 167337, at *3 (S.D.N.Y. Jan. 16, 2024) (plaintiff did not allege she ever requested an accommodation that would remove her from Section 2.61's definition of personnel but rather sought an exemption that she be allowed to continue working in her current position unvaccinated); Conde v. Mid Hudson Regional Hosp. Med. Ctr., 2024 WL 168282, at *7 (S.D.N.Y. Jan. 12, 2024) (“Although the amended complaint frequently uses the term “accommodation,” what plaintiff requested (and the amended complaint generally describes) was in fact an exemption from Section 2.61 that would have allowed her to continue working in her patient-facing position while remaining unvaccinated.”).
As this Court has already described, a long line of cases in this Circuit have uniformly rejected claims that Title VII required employers to grant exemptions from Section 2.61, which pertained to hospitals and other medical entities and required eligible personnel to be fully vaccinated against COVID-19. See Dkt. No. 16 at 16 (citing cases). As in her previous complaint, Plaintiff relies on an October 12, 2021 decision by Judge Hurd in Dr. A v. Hochul, 567 F.Supp.3d. 362 (N.D.N.Y. 2021), which enjoined the New York Department of Heath from enforcing Section 2.61. AC at ECF p. 6. However, as previously explained by the Court, that decision was vacated by the Second Circuit. Dkt. No. 16 at 10-11. Judge Hurd's injunction was also not in effect at the time of Plaintiff's termination and even if it was, that would not have obligated Defendant to ignore Section 2.61 by providing Plaintiff with an exemption to the vaccine requirement. Id. Cornell was not obligated to violate Section 2.61 by allowing Plaintiff, a patient-facing nurse, to continue her job duties while un vaccinated. See, e.g., D'Cunha v. Northwell Health Sys., 2023 WL 7986441, at *2 (2d Cir. Nov. 17, 2023) (holding that granting plaintiff's requested exemption from COVID-19 vaccination requirement would have posed undue hardship on defendant under Groff because it would have required them to violate Section 2.61); Kauffman v. N.Y.Presbyterian Hosp., 2024 WL 2279318, at *7-8; Booth v. N.Y.Presbyterian Hosp.-Behavioral Health Ctr., 2024 WL 1381310, at *4 (S.D.N.Y. Mar. 29, 2024); Bandalos v. Stony Brook Univ. Med. Ctr., 2024 WL 1308708, at *5 (E.D.N.Y. Mar. 27, 2024); Adamowicz v. Northwell Health Inc., 2024 WL 1072210, at *8 (E.D.N.Y. Mar. 12, 2024); St. Hillaire, 2024 WL 167337, at *4. Plaintiff does not allege that she requested any other accommodation.
Plaintiff also appears to take issue with the fact that Cornell allegedly never disclosed to her the potential risks of the vaccine or her right to deny the “experimental” vaccine. AC at ECF p. 4. But Cornell was not under any obligation to make such disclosures to her. Plaintiff cites 21 U.S.C. § 360bbb-3 for this purported obligation. Id. But that statute describes when the Secretary of Health and Human Services can authorize a drug for emergency use. 21 U.S.C. § 360bbb. It does not regulate what Cornell was obligated to say to its employees and it has no bearing on her Title VII, ADA, or constitutional claims in this action. Cf. Smith v. Terminix Pest Control, Inc., 2023 WL 3569127, at *2 (E.D. La. May 19, 2023) (21 U.S.C. § 360bbb “gives the Secretary of Health and Human Services power to act in an emergency. It does not confer a private right to sue”); Bridges v. Houston Methodist Hosp., 543 F.Supp.3d 525, 527 (S.D. Tex. 2021) aff'd sub nom Bridges v. Methodist Hosp., 2022 WL 2116213 (5th Cir. June 13, 2022) (21 U.S.C. § 360bbb “confers certain powers and responsibilities to the Secretary of Health and Human Services in an emergency. It neither expands nor restricts the responsibilities of private employers; in fact, it does not apply at all to private employers like the hospital in this case”). And Plaintiff's right to refuse the vaccine was not infringed upon. As alleged, Plaintiff did in fact, refuse the vaccine. What Plaintiff is challenging are the employment consequences that followed from her exercise of that right. But as described, Cornell had a right to condition Plaintiff's employment on being vaccinated, in keeping with New York law. In other words, Plaintiff may have a right to refuse the vaccine, but she has no federally-protected right to continue working as a patient-facing nurse at Cornell while unvaccinated. Cf. We the Patriots USA, Inc. v. Hochul, 17 F.4th 266, 293-94 (2d Cir. 2021), clarified, 17 F.4th 368 (2d Cir. 2021), cert. denied sub nom. Dr. A. v. Hochul, 142 S.Ct. 2569 (2022) (“Although individuals who object to receiving the vaccines on religious grounds have a hard choice to make, they do have a choice. Vaccination is a condition of employment in the healthcare field; the State is not forcibly vaccinating healthcare workers.”).
Plaintiff therefore fails to state a claim for religious discrimination under Title VII.
II. ADA Claim
Title I of the ADA provides: “[N]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To establish a prima facie case for discrimination under the ADA, “a plaintiff must show by a preponderance of the evidence that: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability.” McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013) (quoting Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006)).
Defendant argues that Plaintiff cannot maintain an ADA claim because she alleges no facts concerning the nature of any disability or that she requested an accommodation. Dkt. No. 19 at 9-10. Defendant asserts that Plaintiff's only allegation related to a disability is that she was on FMLA leave for a disability from June 24, 2021 through August 6, 2021, but that the reason for the FMLA leave was in fact Plaintiff's infection with COVID-19, which is not a disability. Id. at 9. Defendant also argues that even if Plaintiff had alleged a disability, Cornell would have properly denied an exemption request regarding the COVID-19 vaccine because without the vaccine she was legally unable to perform the essential functions of her job (i.e., providing direct care to patients). Id. at 10.
Defendant is correct. Plaintiff's ADA claim fails for several reasons. Plaintiff has not sufficiently alleged that she was disabled within the meaning of the ADA. Her allegations on this issue have not substantially changed from those in her prior complaint, which the Court explained were insufficient. See Dkt. No. 16 at 11-12. Her only allegations on this point are that she was on approved FMLA leave for a disability and that Cornell was aware of the disability due to the fact that she was on approved FMLA leave. AC at ECF pp. 2-4. Simply stating that she was on FMLA leave for “a disability” is not sufficient. As the Court previously stated, an individual can take FLMA leave for any number of reasons, including those unrelated to the individual's physical or mental disabilities so an allegation that Plaintiff was on FLMA leave establishes neither that she was disabled nor that Defendant knew of the disabilities. Id. at12. The documents Plaintiff submitted with her complaint indicate that Plaintiff's leave was due to infection with COVID-19. See AC at ECF p. 61. Plaintiff makes no allegations that she had an ongoing disability or that she was disabled at the time she was terminated. See Dkt. No. 11-1 at 4; Dkt. No. 17 at ECF p. 61. And, for the reasons already described, see supra Section I, Plaintiff has not made a prima facie case that she was otherwise capable of performing the essential functions of her job or that she was improperly denied an accommodation for her disability given her job required her to be onsite and interact with patients. Plaintiff has therefore failed to state a claim for violation of the ADA.
The Court can consider documents attached to a complaint as exhibits. See Roth v. CitiMortgage Inc., 756 F.3d 178, 180 (2d Cir. 2014).
III. Bivens/Constitutional Claims
The problem with Plaintiff's constitutional claims is that there is no state action here and so there can be no constitutional violation.
A so-called Bivens claim originated from the Supreme Court's decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). In that case, the Supreme Court recognized a private right of action against agents of the Federal Bureau of Narcotics who had
allegedly arrested him in an unconstitutional manner. Id. at 389, 397. A Bivens action is a private right of action for damages against federal officers alleged to have violated a citizen's constitutional rights. See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). It does not apply to corporate defendants. Id. at 70-71; see also Woytowicz v. George Washington Univ., 327 F.Supp.3d 105, 115 (D.D.C. 2018) (claims against university may not be brought under Bivens because entities, unlike individuals, are exempt from Bivens liability). Defendant Cornell is a private entity, not an individual federal officer. Therefore, a Bivens claim cannot be brought against Cornell.
Construing the pleadings liberally given the Plaintiff's pro se status, the Court construes those pleadings as intended to state a cause of action against Cornell for a violation of 42 U.S.C. § 1983, which applies to state actors, rather than federal officials. See Feldman v. Lyons, 852 F.Supp.2d 274, 278 (N.D.N.Y. 2012). Section 1983 provides in pertinent part that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured[.]42 U.S.C. § 1983. Section 1983 does not grant rights but rather provides a mechanism for enforcing individual rights secured elsewhere, such as those secured by the U.S. Constitution. See Abadi v. Am. Airlines, 2024 WL 1346437, at *18 (S.D.N.Y. Mar. 29, 2024). To state a claim under Section 1983, a plaintiff must demonstrate that she was deprived of constitutional or federal statutory rights by a person acting under color of state law. See Kingsley v. Cornell Univ., 2022 WL 20726193, at *3 (N.D.N.Y. Oct. 17, 2022). “The traditional definition of acting under color of state law requires that the defendant . . . have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” See Gehm v. Cornell Univ., 2009 WL 4730699, at *3 (N.D.N.Y. 2009) (citing West v. Atkins, 487 U.S. 42, 49 (1988)). Thus, the operative question with respect to a Section 1983 claim here is whether Plaintiff has sufficiently alleged that Cornell, a private university, was operating under color of state law. Vengalattore v. Cornell Univ., 36 F.4th 87, 111 (2d Cir. 2022); Beck v. Cornell Univ., 2016 WL 6208535, at *2 (N.D.N.Y. 2016).
The acts of a private entity, like Cornell here, can be attributed to the state when: (1) the entity acts pursuant to the “coercive power” of the state or is “controlled” by the state (“the compulsion test”); (2) when the state provides “significant encouragement” to the entity, the entity is a “willful participant in joint activity with the [s]tate,” or the entity's functions are “entwined” with state policies (“the joint action test” or “close nexus test”); or (3) when the entity “has been delegated a public function by the [s]tate,” (“the public function test”). Abadi, 2024 WL 1346437, at *19 (citing Syblaksi v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)); Deniran v. Museum of Modern Art, 2022 WL 3030508, at *2 (S.D.N.Y. June 17, 2022) (internal citations omitted), report and recommendation adopted 2022 WL 3030513 (S.D.N.Y. Aug. 1, 2022).
Plaintiff has not satisfied any of these tests. There was no coercion by the state. Coercion requires that the state must have “exercised coercive power or . . . provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Abadi, 2024 WL 1346437 at *19 (internal citations omitted). The action complained of, that Cornell terminated Plaintiff for failing to become vaccinated, was not an act of the state. It was Cornell's act as an employer, albeit motivated by the laws and regulations of the state to which it was subject. But a private entity does not become a state actor merely because it was created by, or is funded, licensed, or regulated by, the government. Id. (citing Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012)). The connection alleged between Defendant and the state of New York is that Defendant's COVID-19 vaccination policy was in place pursuant to Section 2.61, a New York State regulation. That Plaintiff's termination was precipitated by New York State's COVID-19 regulations does not transform Cornell into a state actor. Deniran, 2022 WL 3030508, at *2; Cheeks v. Montefiore Med. Ctr., 2023 WL 8235755, at *2 (S.D.N.Y. Nov. 28, 2023). And any state funding received by Cornell is also insufficient to render it a state actor. Fabrikant, 691 F.3d at 207; Woytowicz, 327 F.Supp.3d at 117.
Similarly, the close nexus test only applies when the state is “responsible for the specific conduct of which the plaintiff complaints,” and the “touchstone of joint action is a plan, prearrangement, conspiracy, custom, or policy” shared by the private actor and the state. Abadi, 2024 WL 1346437 at *20. The public function test is only satisfied when a private entity performed a function traditionally exclusively reserved to the state. Id. at *21. Cornell's operation of a hospital was not a public function nor do the allegations support overlapping identity between Cornell and the state of New York or any agreement between them. See Id. at *19-21. And, as described, that Cornell was implementing New York laws and regulations does not transform it into a state actor. See Id. at *20 (noting that “the existence of governmental regulations, standing alone, does not create the requisite entwinement” to satisfy the joint action or close nexus test).
Even if Plaintiff had alleged state action, she has not alleged any constitutional deprivation. The Second Circuit has rejected the argument that vaccine requirements imposed in the public interest, in the face of a public health emergency, are unconstitutional. See We the Patriots, 17 F.4th at 293.
Plaintiff therefore fails to state a claim that Defendant violated her constitutional rights under Bivens or Section 1983.
As with her prior complaint, on a liberal reading of the Amended Complaint, Plaintiff also appears to allege a claim for intentional infliction of emotional distress. That claim fails for the same reasons stated in the Court's prior opinion. Dkt. No. 16 at 12-14.
IV. Leave to Replead
Plaintiff has also requested leave to file a second amended complaint. See Dkt. No. 24. She states that she seeks “more time to complete another amended claim” and that she “recently became aware of certain crucial information that I believe is of the utmost importance to the resolution of this matter.” Id. at ECF p. 1.
District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Bell v. N.Y.C. Dep't of Educ. Off. of Gen. Counsel, 2024 WL 342898, at *4 (S.D.N.Y. Jan. 29, 2024) (citing Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011)). District courts “should not dismiss [apro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Id. (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Here, the Court has given Plaintiff an opportunity to amend her complaint. The Amended Complaint makes largely the same allegations as the original complaint that are insufficient to state a claim as a matter of law. In other words, “[t]he problem with [Plaintiff's] complaint is substantive; better pleading will not cure it.” Cuoco, 222 F.3d at 112. It is undisputed that Plaintiff worked as a patient-facing nurse, refused to receive the COVID-19 vaccination, and was subsequently terminated. Based on the Court's foregoing analysis of the implausibility that Plaintiff's termination for refusing the COVID-19 vaccine violated Title VII, the ADA, or her constitutional rights, the Court finds that granting Plaintiff leave to file a second amended complaint would be futile and is therefore not warranted. See, e.g., TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (affirming district court's denial of leave to amend where plaintiff did not indicate how it could cure its pleading deficiencies); Florence v. Studco Bldg. Sys. US, LLC, 2015 WL 2406114, at *3 (leave to replead futile where complaint already described allegedly discriminatory events and they were insufficient to establish actionable discrimination); Harris v. Mills, 478 F.Supp.2d 544, 548 (S.D.N.Y. 2007) (denying leave to replead where plaintiff had already been given an opportunity to amend his claims and had still failed to state a claim).
CONCLUSION
The motion to dismiss is GRANTED with prejudice and Plaintiff's motion to file a second amended complaint is DENIED.
The Clerk of Court is respectfully directed to close Dkt. No. 18.
SO ORDERED.