Opinion
No. 85131/2022
10-07-2022
TIMOTHY RIVICCI, Petitioner, v. NEW YORK CITY FIRE DEPARTMENT and THE CITY OF NEW YORK, Respondents. For A Judgment Pursuant To Article 78 of the CPLR
Unpublished Opinion
AMENDED DECISION & ORDER
Ralph J. Porzio Judge:
Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, it is
ORDERED that Motion #002 brought by Respondents for a judgment pursuant to CPLR 3211(a)(7) to dismiss the Petition on the grounds that the Petitioner failed to state a claim is hereby denied.
ORDERED that the Petition is hereby granted.
BACKGROUND & PROCEDURAL HISTORY
Petitioner, Timothy Rivicci, (hereinafter "Petitioner"), is a former firefighter with the New York City Fire Department (hereinafter "FDNY"). By way of background, the Petitioner began working as a firefighter with the FDNY in 2016. During the Covid-19 pandemic, Mayor Bill DeBtasio issued Emergency Executive Order No. 98 declaring a state of emergency in the City of New York. Thereafter, on March 25, 2020, the New York City Commissioner of Health and Mental Hygiene declared the existence of a public health emergency. It is noteworthy, that these declarations are still in effect, over two years later.
The Department of Health and Mental Hygiene (hereinafter "DOHMH") issued an Order on October 20, 2021, which required all New York City employees to receive vaccination against Covid-19 by on or before October 28, 2021. The City maintains that vaccination is a condition of employment with the City of New York. As the Petitioner failed to provide proof of vaccination by November 1,2021, he was placed on Leave Without Pay (hereinafter "LWOP"), On November 5, 2021, the Petitioner submitted a religious reasonable accommodation request to the FDNY Equal Employment Opportunity Office (hereinafter "FDNY EEO"). The FDNY ultimately denied this request, claiming that it constituted an undue hardship to the agency. The Petitioner appealed his denial to the City of New York Reasonable Accommodation Appeals Panel (hereinafter "City Panel"). On February 20, 2022, the City Panel denied the Petitioner's appeal in light of the undue hardship to the FDNY. On March 14, 2022, the Petitioner was terminated from employment for failure to be vaccinated.
This action was commenced with the filing of a Petition pursuant to CPLR Article 78 on June 10, 2022. The Petitioner alleges that the denial of his reasonable accommodation request and subsequent termination was affected by an error of law or was arbitrary and capricious. Petitioner seeks a judgment of reinstatement to his prior employment.
On July 21, 2022, the Respondents, FDNY and City of New York, filed a pre-Answer Motion to Dismiss. After oral arguments on August 12, 2022, the Court denied the Motion to Dismiss. The Court directed the Respondents to file their Answer. Oral arguments on the Petition were heard on October 4, 2022.
MOTION TO DISMISS
Upon a motion to dismiss a complaint pursuant to CPLR §3211, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff." Morris v. Gianelli, 71 A.D.3d 965, 967 [2d Dept. 2010]. A motion to dismiss should be granted where the Complaint fails to "contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory." Matlin Patterson ATA Holdings LLC v. Fed. Express Corp., 87 A.D.3d 836, 839 (1st Dept. 2011).
CPLR §3211 (a)(7) provides that "A party may move for judgment dismissing one or more causes of action asserted against him on the ground that...the pleading fails to state a cause of action." The Court will consider "whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." Guggenheimer v. Ginzburg, 43 N.Y.2d 268,275 (1977). Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action. Korinsky v. Rose, 120 A.D.3d 1307, 1308 (2d Dept. 2014). Courts have repeatedly granted motions to dismiss where the factual allegations in the claim were merely conclusory and speculative in nature and not supported by any specific facts." See Residents for a More Beautiful Port Washington, Inc. v. Town of North Hempstead, 153 A.D.2d 727 [2d Dept 1989]; Stoianoff v. Gahona, 248 A.D.2d 525 [2d Dept. 1998].
Here, the Court finds it clear that the Petitioner has a cause of action cognizable at law. Therefore, the Motion to Dismiss is denied and in the interest of justice, the Respondents were permitted to Answer and all other claims within the motion papers are addressed below.
ARTICLE 78
Standard of Review
Judicial review of the acts of an administrative agency under article 78 is limited to questions expressly identified by statute (see CPLR §7803; Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554 [2000]). CPLR §7803 states:
The only questions that may be raised in a proceeding under this article are:
1.whether the body or officer failed to perform a duty enjoined upon it by law; or
2.whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or
3.whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or
4.whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.
5.A proceeding to review the final determination or order of the state review officer pursuant to subdivision three of section forty-four hundred four of the education law shall be brought pursuant to article four of this chapter and such subdivision; provided, however, that the provisions of this article shall not apply to any proceeding commenced on or after the effective date of this subdivision.
Under CPLR Article 78, the Petitioners must establish that the agency determination or decision is so "lacking in reason for its promulgation that it is essentially arbitrary." NY State Ass 'n. of Counties v. Axelrod, 78 N.Y.2d 158, 166 (1991). The standard of review is "whether the regulation has a rational basis, and is not unreasonable, arbitrary, or capricious." Matter of Consolation Nursing Home, Inc., v. Commr. Of New York State Dept. of Health, 85 N.Y.2d 326, 331-332 [1995]. The reviewing court "must be certain that an agency has considered all the important aspects of the issue and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made." O 'Rourke v. City of NY, 64 Misc.3d 1203 [A] [Sup. Ct. Kings County 2019]. The Court "may not substitute its own judgment of the evidence...but should review the whole record to determine whether there exists a rational basis to support the findings upon which the ...determination is predicated." Purdy v. Kreisberg, 47 N.Y.2d 354, 358 (1979). "Public health agencies, in particular, are entitled to a high degree of judicial deference when acting in their area of their particular expertise." C.F. v. NYC Dept. Of Health & Mental Hygiene, 191 A.D.3d 52, 69 [2d Dept. 2020].
In reviewing alleged arbitrary and capricious administrative determinations, a reviewing court's function is limited to "whether the record contains sufficient evidence to support the rationality of the...determination." Atlas Henrietta LLC v. Town of Henrietta Zoning Ed. Of Appeals, 46 Misc.3d 325, 332 [Sup. Ct. 2013] affd, 120 A.D.3d 1606 [2014]. Furthermore, "capricious action in a legal sense is established when an administrative agency on identical facts decides differently." Italian Sons & Daughters, Inc. v. Common Council of Buffalo, 453 N.Y.S.2d 962 [4th Dept. 1982], Reasonable Accommodation Process
The Petitioner submitted his "Request for Reasonable Accommodation" on November 5, 2021. In his request, the Petitioner requested weekly testing and/or antibody testing as a possible accommodation. On November 29,2021, the FDN Y EEO denied the Petitioner's Accommodation Request, stating that Petitioner's "asserted basis for the accommodation is insufficient to grant the requested accommodation, particularly in light of the potential undue hardship to the Department."
On or about December 6, 2021, the Petitioner appealed the denial of his accommodation request. On or about January 7, 2022, the Petitioner received an email regarding "Supplemental Information: Denial of Religious Request for Vaccine Mandate Exemption." The Petitioner was informed that his exemption request was denied because "the asserted religious basis seeking the exemption was insufficient in light of the potential undue hardship to the Department." On or about February 20, 2022, the City Panel denied the Petitioner's appeal, citing "Employer undue hardship" without any further description as to what the undue hardship was.
Under federal law, the City of New York must make reasonable accommodations for religious practices of its employees, unless the accommodation results in undue hardship on the conduct of the employer's business. Baker v. The Home Depot, 445 F.3d 541 [2d Cir. 2006]. Pursuant to the NYC Administrative Code, the City of New York must reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless the accommodation would create an undue hardship or present a direct threat. See NYC Admin. Code 8-107(3). Furthermore, the Respondents must show that accommodating the employee would cause a "significant interference with the safe or efficient operation of the workplace." See NYC Admin. Code 8-107(3)(b). Moreover, "the determination that no reasonable accommodation would enable the person requesting an accommodation to satisfy the essential requisites of a job or enjoy the right or rights in question may only be made after the parties have engaged, or the covered entity has attempted to engage, in a cooperative dialogue.'" See NYC Admin. Code 8-107 (28)(e) (emphasis added).
DECISION
In this action, it is of note that the denial of the Petitioner's religious reasonable accommodation request only included the reasons "potential undue hardship" from the FDNY and, on appeal, an "undue hardship" from the City Panel. This Court finds the denial of the Petitioner's reasonable accommodation request was arbitrary and capricious because the reasons given for the denial were vague and conclusory. See CPLR 7803(3); See also Loiacano v. The Board of Education of the City of New York, et al, Index No.: 154875/2022 (wherein the Court found that the denial of a reasonable accommodation "simply states that the panel reviewed her request and denied it without explaining why it did so.") See DeLetto v. Eric Adams, et al, Index No. 156459/2022 decision dated 9/13/2022, (wherein the Court found the denial of a religious exemption, finding that the determination of the NYPD was "irrational because it did not provide any individualized analysis.") and Police Benevolent Assoc, v. City of New York, et al. Index 151531 /2022 (wherein the Court struck down the vaccine mandate as to the members of the Police Benevolent Association on the following grounds: (1) that the City cannot unilaterally impose a condition of employment without collective bargaining with the PBA; (2) the mandate is invalid to the extent it seeks enforcement by putting workers on leave without pay or terminating them; and (3) members of the PBA that were wrongfully terminated and/or put on leave without pay were directed to be reinstated).
Furthermore, the Court finds that the denial of the Petitioner's reasonable accommodation request was made in violation of lawful procedure. See CPLR §7803. Neither the FDNY, nor any other City agency, engaged in a cooperative dialogue with the Petitioner regarding an accommodation to satisfy the essential requisites of ajob, in direct violation of the New York City Human Rights Law. NYC Admin. Code 8-107 (28)(e).
Simply citing an "undue hardship" is not an explanation for denial of a reasonable accommodation. Further, there is no evidence within the record that the Petitioner's religious beliefs are not sincerely held. This appears to be a generic denial, without any reasoning for the denial of this Petitioner's request. Further compelling, is the Affidavit of Don Nguyen, the Assistant Commissioner of Equal Employment Opportunity at the FDNY, provided by the Respondents, wherein he explained that the FDNY has granted twenty (20) reasonable accommodations, both for medical and religious exemptions. The Petitioner, on reply, at the Court's request, submitted the Affidavits of Robert Banome and Stephen Fitzgerald, members of the FDNY who were granted reasonable accommodations of weekly testing and mask wearing. The Court cannot help but question, why were those accommodations of testing and masking granted, while this Petitioner's request for an accommodation would cause an "undue burden" to the Department. It makes no difference to this Court whether the accommodation was granted for a religious or medical reason. The record is bereft of any reasoning, rational or otherwise.
Though the Court cannot substitute its own judgment for an agency determination, the question presented is whether there exists a rational basis within the record to support the determination. See Purdy v. Kreisberg, Al N.Y.2d 354, 358 (1979) and Atlas Henrietta LLC v. Town of Henrietta Zoning Bd. Of Appeals, 46 Misc.3d 325, 332 [Sup. Ct. 2013] aff'd, 120 A.D.3d 1606 [2014]. There is not.
By granting some accommodations while denying others, without a rational reason, the FDNY and the City of New York have acted in an arbitrary and capricious manner. See Italian Sons & Daughters, Inc. v. Common Council of Buffalo, 453 N.Y.S.2d 962 [4th Dept. 1982]. The Respondents statements during litigation "does not suddenly transform the denial into one that contains logical reasoning." Loiacano v. The Board of Education of the City of New York, et al, Index No.: 154875/2022. Furthermore, the City of New York has regularly and arbitrarily enforced vaccination and masking mandates. As this Court previously ruled in the Goldenstein, et al, v. New York City Dept. of Health & Mental Hygiene et al, athletes and performing artists can "work" in our city because they were granted a blanket vaccination exemption by the Mayor, meanwhile, our essential workforce is being terminated and punished for non-compliance. Vaccination mandates were lifted for those in the private sector but doubled down on with the City workforce.
Mayor's Emergency Executive Order 62; https://wwwl.nyc.gov/office-of-the-mayor/iiews/062-003/emergencyexecutive-order-62; last accessed October 4,2022.
Hindsight is a powerful tool. The pandemic today is not what it was a year, or even two years, ago. Being vaccinated does not prevent an individual from contracting or transmitting Covid-19, Guidelines regarding quarantine and isolation are the same for vaccinated and unvaccinated individuals. This is not a commentary on the efficacy of vaccination, but about how we are treating our first responders, the ones who worked day-to-day through the height of the pandemic. They deserve better.
The undue burden to the FDNY was never articulated and there appears to be no rational basis within the record to support the determination by the City of New York as to this Petitioner. There was no cooperative dialogue and no options given to the Petitioner as to how to maintain his position, while not contradicting his sincerely held religious beliefs. A cooperative dialogue is not a suggestion. It is required by law. It is of no concern to this Court that the FDNY received more exemption requests than anticipated. Each request for an exemption, whether it be medical or religious, required that the law be followed. As the record contains insufficient evidence to support the Respondents' determination and there was no cooperative dialogue regarding the accommodation request, the denial of the Petitioner's reasonable accommodation is hereby annulled.
Finally, the Court is granting the Petitioner's application for backpay and attorney's fees. Per the Respondent's submission of the Affirmation of Eric Eichenholtz, the Chief Assistant Corporation Counsel for Employment Policy and Litigation, "a grant of a reasonable accommodation for an employee on LWOP results in the employee being restored to payroll and provided with back pay for the period of time they were on LWOP status." The Court further finds that an award of attorney's fees to the Petitioner is warranted under the facts and circumstances of this case. See Auguste v. Wing, 269 A.D.2d 239 [1st Dept. 2000]; Graves v. Doar, 87 A.D.3d 744 [2d Dept. 2011]; Perez v. New York Slate Dept. of Labor, 259 A.D.2d 161 [3d Dept. 1999],
Accordingly, it is hereby
ORDERED that the Petition is granted in that the Petitioner is entitled to a religious exemption from the vaccine mandate.
ORDERED that the Petitioner's termination from the FDNY is hereby annulled.
ORDERED that the Petitioner is reinstated to his full employment status, effective October 5, 2022, at 5:00PM.
ORDERED that the Petition is granted in that the Petitioner is entitled to back pay in salary and benefits from November 5, 2021, the date he submitted his request for a reasonable accommodation.
ORDERED that an award of attorney's fees is granted to the Petitioner.
ORDERED that the Petitioner is directed to submit a proposed order and judgment regarding back pay and attorney's fees consistent with this decision on or before October 12,2022.