Opinion
Index No. 156934/2022 Motion Seq. No. 001
02-03-2023
EPSTEIN GRULLON, Petitioner, v. THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT and POLICE BENEVOLENT ASSOCIATION, INC., Respondents.
Unpublished Opinion
MOTION DATE 08/15/2022.
PRESENT: HON. ERIKA M. EDWARDS, Justice.
DECISION + ORDER ON VERIFIED PETITION
ERIKA M. EDWARDS, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 41, 42, 43, 44, 45, 46, 47, 48, 49, 51, 52 were read on this motion to/for Article 78.
Upon the foregoing documents, the court grants in part Petitioner Epstein Grullon's ("Petitioner") Article 78 Verified Petition against Respondents The City of New York ("The City") and The New York City Police Department ("NYPD") (collectively "Respondents") to the extent that the court determines that Respondents' denial of Petitioner's appeal of NYPD's denial of his religious accommodation request was arbitrary and capricious, the court annuls and reverses the decision and orders Respondents to grant Petitioner's reasonable accommodation request and permit him to work at full pay status with compliance with the City's weekly Covid-19 testing requirement. The court permanently enjoins Respondents from placing Petitioner on Leave Without Pay, from terminating Petitioner from his employment as a member of the New York City Police Department and from taking any adverse employment action against Petitioner for his refusal to get vaccinated against Covid-19 on the ground that getting vaccinated would violate his sincerely held religious beliefs. The portions of the Verified Petition seeking a temporary restraining order and preliminary injunction are denied as moot, since the court previously denied the temporary restraining order and granted the preliminary injunction. The court denies the remainder of the Verified Petition and enters judgment in favor of Petitioner against Respondents, without costs to any party.
In a decision and order, dated October 8, 2022, the court granted Respondent Police Benevolent Association, Inc.'s cross-motion to dismiss the Verified Petition against it.
Petitioner is an unvaccinated Police Officer with NYPD. In his Verified Petition, Petitioner alleges in substance that he refused to be vaccinated against Covid-19 because it violates his sincerely held religious beliefs. Since September 2021, Petitioner states that he has been in compliance with the City's requirement that all unvaccinated City employees submit to weekly Covid-19 testing. On October 20, 2021, the Commissioner of the New York City Department of Health and Mental Hygiene ordered that all City employees were required to show proof of at least one dose of vaccination by 5:00 p.m. on October 29, 2021, or they would be excluded from the premises at which they work beginning on November 1, 2021. City employees could apply for a reasonable accommodation for exemption from the vaccination requirement by October 27, 2021, or they would be placed on Leave Without Pay status effective on November 1, 2021. The City would still require the employee to submit weekly negative PCR Covid-19 test results to continue working.
On or about October 25, 2021, Petitioner filed a Reasonable Accommodation Application for Covid-19 Vaccine Exemption for Members of the Service based on his alleged sincerely held religious beliefs. In the application, Petitioner described his religious practices which required exemption from the Covid-19 vaccination as his beliefs that his body is a temple of the Holy Spirit which God gave him with an immune system. He further stated that he would not defile his body or alter his immune system with an injection like the Covid-19 vaccination or unwanted intrusions like weekly testing because they violate his sincerely held religious beliefs and would be a sin against God. Petitioner did not explain why the vaccine or weekly testing were intrusions which violated his religious beliefs.
On November 30, 2021, NYPD denied Petitioner's reasonable accommodation request. In its denial, NYPD's Director of the Equal Employment Opportunity Division stated in substance that Petitioner's request was denied at this time after careful review of Petitioner's application and documents submitted. However, no reason for the denial was provided.
On December 7, 2021, Petitioner appealed the denial to the NYPD Equal Employment Opportunity Division's Deputy Commissioner of Equity and Inclusion and requested a reasonable accommodation that included a vaccine exemption. However, this time Petitioner consented to weekly testing. In the appeal, Petitioner wrote a letter indicating that he has been a "devout Christian" for over seventeen years and that he holds an "ultra-orthodox religious view of abortion." He provided additional details of his Christian beliefs, the church that he attended for five years, and his relationship with God. Petitioner stated in substance that God told him in prayer not to take any of the presently available Covid-19 vaccines because they violate Petitioner's understanding of the teachings in the bible and the church's Statement of Faith involving the sanctity of human life, which includes pre-born babies; Petitioner's and others' calling "to defend, protect and value all human life;" and his religious and moral views against abortion. Petitioner stated in substance that he could not knowingly support anything that would involve the taking of a baby's life or the use of any substance derived from "an infant's life that had been prematurely taken by man." He stated in substance that the available vaccines were developed using stem cell lines from unborn babies, so it would be contrary to his religious beliefs to get any of the Covid-19 vaccinations. Petitioner also stated that he already had Covid- 19 and fully recovered from it, thus he had sufficient antibodies for natural immunity to adequately protect others from contracting the virus from him. Petitioner also included a letter from his Pastor in support of his application.
After a court order requiring NYPD to include additional information regarding the reasons for its denials, on February 8, 2022, NYPD's Office of the Deputy Commissioner for Equity and Inclusion, Equal Employment Opportunity Division issued a second denial of Petitioner's reasonable accommodation request. The denial indicated that the decision was made after careful review of his application and the documents submitted. Three boxes were checked indicating that the reasons for the denial were that Petitioner's objection was "personal, political or philosophical," his request for accommodation was for "non-religious reason," and his written statement did "not set forth how religious tenets conflicts (sic) with vaccine requirement."
On August 8, 2022, the NYC Employee Vaccine Appeals notified Petitioner via email that his appeal was denied. The denial indicated that the decision classification was "Does Not Meet Criteria." The denial indicated that the determination was made after The City of New York Reasonable Accommodation Appeals Panel's ("Appeals Panel") careful review of his agency's determination, all of the documentation submitted to the agency and the additional information that Petitioner submitted in connection with the appeal. It also advised Petitioner that it was the final decision regarding his request for a reasonable accommodation, that he had seven calendar days to submit proof of vaccination, or if he failed to do so, then he would be placed on Leave Without Pay.
Petitioner's Verified Petition challenges the denial of his appeal and seeks a judgment:
1) Declaring that Respondents' denial of Petitioner's request for a reasonable accommodation exempting him from being required to take the Covid-19 vaccination is arbitrary and capricious and an order annulling and reversing the decision;
2) Ordering Respondents to grant Petitioner a reasonable accommodation to work at full pay status with continued weekly Covid-19 testing;
3) Awarding Petitioner money damages suffered caused by the unlawful denial of his reasonable accommodation request with reasonable attorney's fees, costs and expenses; and
4) Enjoining Respondents from violating Petitioner's New York State Constitution Free Exercise Right and ordering a temporary restraining order, preliminary injunction and permanent injunction.
Respondents opposed Petitioner's previous order to show cause and filed an Answer in opposition to Petitioner's Verified Petition.
Although the court declined to issue a temporary restraining order, in its previous decision and order, dated October 8, 2022, the court granted Petitioner's request for a preliminarily injunction during the pendency of this proceeding and enjoined Respondents from placing Petitioner on Leave Without Pay, from terminating Petitioner from his employment as a member of the NYPD and from taking any adverse employment action against Petitioner for refusing to get vaccinated against Covid-19 on the ground that getting vaccinated would violate his religious beliefs.
In an Article 78 proceeding, the scope of judicial review is limited to whether a governmental agency's determination was made in violation of lawful procedures, whether it was arbitrary or capricious, or whether it was affected by an error of law (see CPLR § 7803[3]; Matter of Pell v Board of Educ., 34 N.Y.2d 222, 230 [1974]; and Scherbyn v BOCES, 77 N.Y.2d 753, 757-758 [1991]). In reviewing an administrative agency's determination, courts must ascertain whether there is a rational basis for the agency's action or whether it is arbitrary and capricious in that it was without sound basis in reason or regard to the facts (Matter of Stahl York Ave. Co., LLC v City of New York, 162 A.D.3d 103, 109 [1st Dept 2018]; Matter of Pell, 34 N.Y.2d at 231). Where the agency's determination involves factual evaluation within an area of the agency's expertise and is amply supported by the record, the determination must be accorded great weight and judicial deference (Testwell, Inc. v New York City Dept, of Bldgs., 80 A.D.3d 266, 276 [1st Dept 2010]). When a court reviews an agency's determination it may not substitute its judgment for that of the agency and the court must confine itself to deciding whether the agency's determination was rationally based (Matter of Medical Malpractice Ins. Assn, v Superintendent of Ins. of State of N. Y., 72 N.Y.2d 753, 763 [1st Dept 1988]).
Furthermore, an agency is to be afforded wide deference in the interpretation of its regulations and, to a lesser extent, in its construction of the governing statutory law, however an agency cannot engraft additional requirements or assume additional powers not contained in the enabling legislation (see Vink v New York State Div. of Hous, and Community Renewal, 285 A.D.2d 203,210 [1st Dept 2001]).
Pursuant to both the New York State Human Rights Law, Executive Law §296 (NYSHRL), and the New York City Human Rights Law, Administrative Code of the City of New York §8-107(28)(a) (NYCHRL), the first step in providing a reasonable accommodation is to engage in a good faith interactive process or cooperative dialogue that assesses the needs of the employee and the reasonableness of the accommodation requested. The interactive process continues until, if possible, an accommodation reasonable to the employee and employer is reached (Hosking v Mem 'I Sloan-Kettering Cancer Ctr., 186 A.D.3d 58, 63 [1st Dept 2020]).
The court has the authority to enter judgment granting Petitioner the relief for which he is entitled and since Petitioner seeks review of an agency's determination, the judgment may annul or confirm the determination in whole or in part, or modify it, and the court may direct or prohibit specified action by the respondent (CPLR 7806). The court also has discretion to order restitution or damages. .
Here, the court determines that Respondents' decision, dated August 8, 2022, denying Petitioner's appeal of the denial of his request for reasonable accommodation and exemption from the Covid-19 vaccination requirement based on his sincerely held religious beliefs was arbitrary and capricious and without a rational basis. The court finds that the determination was without sound basis in reason and without regard for the facts included in Petitioner's appeal letter, which contradict the purported reasons set forth in NYPD's second denial and the denial of Petitioner's appeal.
In his appeal, Petitioner included additional details about his Christian and moral beliefs which he stated were based on his belief in God, the bible and the teachings of his church. In support of his appeal, he included references to the bible, his church's Statement of Faith and a letter from his Pastor. He also provided support for his belief that the vaccines were developed using "stem cell lines from unborn babies" and explained why taking any of the available vaccines would violate his religious beliefs.
Conversely, despite Petitioner's detailed submission, the Appeals Panel failed to even mention any of Petitioner's arguments, let alone refute them as being non-religious in nature or not sincerely held beliefs. The decision also failed to mention NYPD's underlying decision denying Petitioner's application or the basis of the decision including the reasons listed on the checked boxes. The decision also failed to mention that it was affirming NYPD's denial and that it agreed with any of the reasons for which the underlying denial was based. Simply, the denial of the appeal is devoid of any explanation, reasoning, or support for its determination that Petitioner's request for a reasonable accommodation did not meet criteria. The Appeals Panel failed to state what the criteria was for obtaining a reasonable accommodation, it failed to include which criteria Petitioner's request failed to satisfy, or any details or support for its determination. Without any explanation or details, the purported reason provided that it did not meet criteria is tantamount to no reason at all.
The initial denial of Petitioner's request for a reasonable accommodation based on his sincerely held religious beliefs failed to include any basis for the denial. However, Petitioner's initial request lacked the details about his religious beliefs or how the vaccines contradicted his beliefs. In his appeal, Petitioner's statement and supporting documents provided extensive details about the nature of his religious beliefs, support for his beliefs that were based on his understanding of his religion's principles and the reasons why the vaccines were contrary to his religious beliefs.
Since the Appeals Panel indicated that it's decision to deny Petitioner's appeal was made after careful review of the agency's determination, the documentation submitted to the agency and the additional information submitted with the appeal, it is clear that the Appeals Panel claimed that it reviewed Petitioner's written statement and all other documents submitted in support of his appeal. However, despite the detailed information provided by Petitioner, the Appeals Panel failed to mention any of it, failed to challenge it and failed to provide any explanation for finding that it did not meet the criteria.
Additionally, upon review of the underlying denials for which the appeal was based, Respondents failed to provide any basis for the court to evaluate whether the denials had a rational basis. The first denial provided no reason and the second one checked three boxes with general, conclusory purported reasons, without explanation. The second denial was rendered after NYPD had received the information that Petitioner provided with his appeal. It is unclear as to whether the Respondents had considered Petitioner's statement filed with his appeal when they issued their second denial. However, based on the decision, it appears that the decision ignored and even contradicted Petitioner's submissions. Respondents provided nothing to support their determination that Petitioner's claims were based on non-religious reasons, or "personal, political or philosophical" reasons. It is unclear whether Respondents found that Petitioner's alleged beliefs were personal, political, philosophical, or a combination of any or all of these alleged reasons.
However, it is clear that neither Respondents nor the court can impose our opinions about whether we agree with Petitioner's alleged religious beliefs or his understanding of the purported scientific and medical reasons why the vaccines violate his religious beliefs. Respondents' decision denying the appeal provided no evidentiary basis or reasons for challenging whether Petitioner's alleged religious beliefs were sincerely held or whether the vaccine conflicted with those beliefs.
The denial also provided nothing to support its determination that Petitioner's written statement did "not set forth how religious tenets conflicts (sic) with vaccine requirement." It appears to the court that Petitioner's statement included support for his beliefs which was based on his religion, including his understanding of certain biblical verses, his church's and Pastor's teachings and his personal relationship and communications with God.
Therefore, based on the details and support provided in Petitioner's appeal, the court finds that the Appeals Panel's decision that Petitioner did not meet criteria, without more, fails to provide a sufficient basis for denial of Petitioner's appeal. Additionally, the court finds that Respondents' second denial of Petitioner's reasonable accommodation request, which was the only one which attempted to provide reasons for the denial, fails to mention Petitioner's statements and appears to ignore and even contradict Petitioner's claims in support of his application. Therefore, the court finds that the Appeals Panel's decision was not rationally based and that it was arbitrary and capricious.
Additionally, the court finds no evidence that the Respondents engaged in any cooperative dialogue with Petitioner or that the granting of the requested accommodation would unduly burden Respondents.
The court declines to accept Respondents' additional information provided in their Answer and oppositions to Petitioner's Verified Petition and order to show cause in an effort to explain the reasons for the denial of Petitioner's appeal and details of the guidelines and criteria considered by the Appeals Panel as the court is limited to the appellate record before it and cannot consider Respondents' subsequent explanations. For example, Respondents' affirmations explaining the meaning of "Does Not Meet Criteria," arguing that Respondents were not obligated to engage in collaborative dialogue because Petitioner did not meet the threshold, and arguing that the accommodation would be an undue burden on them is simply too little, too late.
The court denies Petitioner's additional requests for money damages, attorney's fees, costs and expenses. The court also declines to issue a permanent injunction enjoining Respondents from violating Petitioner's New York State Constitution Free Exercise Right as the court makes no such finding that Respondents violated Petitioner's State Constitutional right to free exercise of religion. However, the court issues the permanent injunction regarding Petitioner's employment status as set forth below.
Therefore, the court grants Petitioner's Verified Petition, to the extent set forth herein.
The court has considered any additional arguments not specifically discussed herein and the court denies any additional relief not expressly granted herein.
As such, it is hereby.
ORDERED and ADJUDGED that the court grants in part Petitioner Epstein Grullon's Article 78 Verified Petition against Respondents The City of New York and The New York City Police Department to the extent that the court determines that Respondents' denial of Petitioner's appeal of NYPD's denial of his religious accommodation request was arbitrary and capricious, the court annuls and reverses the decision and the court orders Respondents to grant Petitioner's reasonable accommodation request and permit him to work at full pay status with compliance with the City's weekly PCR Covid-19 testing requirement; and it is further
ORDERED that the court denies as moot the portions of the Verified Petition seeking a temporary restraining order and preliminary injunction as the court previously decided these . issues; and it is further
ORDERED that the court denies the remainder of the relief requested in the Verified Petition; and it is further
DECLARED that Respondent The City of New York's denial of Petitioner Epstein Grullon's appeal of Respondent The New York City Police Department's denial of his request for a reasonable accommodation and exemption from the Covid-19 vaccine requirement with weekly Covid-19 testing is arbitrary and capricious; and it is further
DECLARED that Petitioner Epstein Grullon is entitled to a reasonable accommodation from the Covid-19 vaccine mandate and that he is entitled to work at full pay status with compliance with the requirement for weekly PCR Covid-19 testing; and it is further
ORDERED that Respondents The City of New York and The New York City Police.
Department are permanently enjoined from placing Petitioner on Leave Without Pay, from terminating Petitioner from his employment as a member of the New York City Police Department and from taking any adverse employment action against Petitioner for his refusal to get vaccinated against Covid-19 on the ground that getting vaccinated would violate his sincerely held religious beliefs; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment in favor of Petitioner Epstein Grullon as against Respondents The City of New York and the New York City Police Department, without costs to any party.
This constitutes the decision and order of the court.