Opinion
23-CV-4964 (AT) (RWL)
05-16-2024
KEVIN KAUFFMAN, Plaintiff, v. NEW YORK PRESBYTERIAN HOSPITAL, Defendant.
EPORT AND RECOMMENDATION TO HON. ANALISA TORRES: MOTION TO DISMISS
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Kevin Kauffman (“Kauffman” or “Plaintiff”), proceeding pro se, asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”); and the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq. (“NYCHRL”), against his former employer, Defendant New York Presbyterian (“Defendant” or “NYPH”). Kauffman alleges that he was subject to religious discrimination by being denied a religious exemption from NYPH's mandatory COVID-19 vaccine policy. NYPH has moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Rule 12(b)(6)”) on the grounds that the complaint fails to state a claim for which relief can be granted. For the reasons that follow, I recommend that Defendant's motion be GRANTED without prejudice to Plaintiff being given leave to amend.
FACTUAL BACKGROUND
As required on a Rule 12(b)(6) motion to dismiss, the Court takes the well-pled facts alleged in the complaint as true and draws all reasonable inferences in favor of Plaintiff, as the non-moving party. See Morrison v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008).
In 2021, Kauffman was employed by NYPH during the height of the COVID-19 pandemic. (Complaint (“Compl.”), Dkt. 1.) In the summer of 2021, Kauffman was informed by NYPH of a new policy requiring hospital employees to receive the COVID-19 vaccine. (Id. at ECF 10.) NYPH employees had until August 6, 2021, to request an exemption. If such an exemption was denied, NYPH policy required employees to receive the first dose of the COVID-19 vaccine by September 15, 2021. On July 12, 2021, Kauffman submitted a request for an exemption from NYPH's policy on the basis that he held a “religious/deeply held belief.” (Id.) Kauffman received an email from NYPH on August 12, 2021, denying his request. (Id.) Kauffman alleges that the group of individuals that reviewed his exemption denied his request because his religious beliefs were not in line with their own. (Id.)
The Court may take judicial notice of facts regarding COVID-19. L.T. v. Zucker, No. 21-CV-1034, 2021 WL 4775215, at *1 n.3 (N.D.N.Y. Oct. 13, 2021) (“The Court takes judicial notice of facts regarding the spread and lethality of COVID-19 as reported by dependable public health authorities”); see also Hopkins Hawley LLC v. Cuomo, No. 20-CV-10932, 2021 WL 1894277, at *2 n.2 (S.D.N.Y. May 11, 2021) (“Under Rule 201 of the Federal Rules of Evidence, the Court may take judicial notice of facts that are ‘generally known within the trial court's territorial jurisdiction.' General facts regarding the COVID pandemic indisputably fall within Rule 201's purview”) (internal citations omitted).
On August 26, 2021, the New York Department of Health (the “DOH”) enacted Section 2.61, requiring healthcare facilities to “continuously require personnel to be fully vaccinated against COVID-19, with the first dose for current personnel received by September 27, 2021, for general hospitals and nursing homes, and by October 7, 2021 for all other covered entities absent receipt of an exemption,” (the “DOH Mandate” or “Section 2.61”). 10 N.Y.C.C.R.R. § 2.61(c); Medical Professionals for Informed Consent v. Bassett, 185 N.Y.S.3d 578, 581 (N.Y. Sup. Ct. 2023) (describing enactment history).
The Court takes judicial notice of Section 2.61 and its legislative history. On a motion to dismiss, the Court may take judicial notice of “documents retrieved from official government websites,” Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F.Supp.3d 156, 166 (S.D.N.Y. 2015), or other “relevant matters of public record.” Giraldo v. Kessler, 694 F.3d 161, 164 (2d Cir. 2012); see also Lowe v. Mills, No. 21-CV-242, 2022 WL 3542187, at *2 (D. Me. Aug. 18, 2022) (taking judicial notice of the rule challenged, the related statute and its legislative history, as well as “information from the official U.S. Centers for Disease Control and Prevention (‘CDC') and the Maine CDC government websites ‘that is not subject to reasonable dispute'”) (internal quotation marks and citation omitted)); Fed.R.Evid. 201(b) (permitting judicial notice of facts “not subject to reasonable dispute”).
Under Section 2.61, “personnel” is defined as “all persons employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers, who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease.” Id. § 2.61(a)(2). “Covered entities” are defined as “(i) any facility or institution included in the definition of “hospital” in section 2801 of the Public Health Law, including but not limited to general hospitals, nursing homes, and diagnostic and treatment centers.” Id. § 2.61(a)(1). Under the DOH Mandate, covered entities were only permitted to grant “personnel” medical exemptions. Id. § 2.61(d). Covered entities that refused to abide by the DOH Mandate exposed themselves to severe penalties. Kauffman does not dispute that he falls under the definition of personnel or that NYPH is a covered entity under the DOH Mandate.
There has been considerable litigation regarding the DOH's enactment of Section 2.61. The Second Circuit, however, has held that any constitutional challenges against Section 2.61 were not likely to succeed. Specifically, the Circuit struck down arguments under (a) the Supremacy Clause based on preemption by Title VII, (b) the Free Exercise Clause under the First Amendment, and (c) the plaintiffs' fundamental rights under the Fourteenth Amendment. See We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 272, 280 (2d Cir. 2021).
With the end of the COVID-19 pandemic, Section 2.61 was repealed in 2023, but the NYDOH has stated publicly that it may continue to seek sanctions against providers based on previous violations. See Proposed Repeal of Section 2.61 from Title 10 NYCRR, Amendment of Sections 405.3, 415.19, 751.6, 763.13, 766.11, 794.3 & 1001.11 of 10 NYCRR & Sections 487.9, 488.9 & 490.9 of 18 NYCRR (Removal of the COVID-19 Vaccine Requirement for Personnel in Covered Entities), New York Dep't of Health (June 28, 2023) (“Effective immediately the Department will cease citing providers for failing to comply with the requirements of 10 NCYRR Section 2.61 while the regulation is in the process of being repealed. The Department may, however, continue to seek sanctions against providers based on previously cited violations that allegedly occurred”).
Because Kauffman did not get vaccinated for COVID-19, he was placed on leave on September 15, 2021, and subsequently terminated on September 23, 2021. (Compl. at ECF 10; Pl. Opp. at 3.)
“Pl. Opp.” refers to Plaintiff's Response In Opposition To Defendant's Motion To Dismiss. (Dkt. 19.) On a motion to dismiss, the Court may consider allegations that are contained in a pro se plaintiff's opposition papers. See Burgess v. Goord, No. 98-CV-2077, 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 26, 1999) (collecting cases).
PROCEDURAL BACKGROUND
On July 15, 2022, Kauffman filed a complaint with the Equal Employment Opportunity Commission (the “EEOC”) asserting a charge of employment discrimination based on religion. (Compl. at ECF 6.) On March 25, 2023, the EEOC issued Kauffman a notice of his right to sue. (Id. at ECF 8.) On June 12, 2023, Kauffman, proceeding pro se, filed the instant action against NYPH asserting claims for alleged violations of Title VII, NYSHRL, and NYCHRL arising from the denial of his request for a religious exemption and subsequent termination of his employment with NYPH. (Id.)
On October 2, 2023, NYPH filed its motion to dismiss the complaint pursuant to Rule 12(b)(6). In addition to a supporting memorandum of law, NYPH also filed the Declaration of Emily A. Vance (“Vance Decl.”) attaching “true and correct cop[ies]” of Kauffman's July 12, 2021, religious exemption request and NYPH's August 12, 2021 “response” denying his request (the “Denial”). (Dkt. 15, Ex. A.) On October 27, 2023, Kauffman filed his opposition, asserting that he had not seen a copy of Ex. A. (Pl. Opp. at ECF 10.) NYPH replied on November 16, 2023, at which time the motion was fully briefed. The matter has been referred to me for a Report and Recommendation. (Dkt. 17.)
“Def. Mem.” refers to Memorandum Of Law In Support Of Defendant The New York And Presbyterian Hospital's Motion To Dismiss Plaintiff's Complaint. (Dkt. 14.)
“Def. Reply Mem.” refers to Reply In Support Of Defendant The New York And Presbyterian Hospital's Motion To Dismiss Plaintiff's Complaint. (Dkt. 21.)
LEGAL STANDARDS
A. Rule 12(b)(6) Motion To Dismiss
To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the factual content pleaded allows a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. at 678 (quoting Twombly, 550 U.S. at 557). On a 12(b)(6) motion to dismiss, all allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The presumption of truth, however, “‘is inapplicable to legal conclusions,' and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678 (alteration in original)).
B. Review Of Pro Se Pleadings
“Pro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Federal Bureau Of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). “[T]he Second Circuit, as a general matter, is solicitous of pro se litigants, enforcing standards of procedural leniency rather than holding them to the rigidities of federal practice.” Massie v. Metropolitan Museum of Art, 651 F.Supp.2d 88, 93 (S.D.N.Y. 2009); see also Weixel v. Board of Education, 287 F.3d 138, 141 (2d Cir. 2002) (reversing dismissal where district court failed to construe pro se plaintiff's complaint liberally); Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989) (“Once a pro se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might otherwise apply if he were represented by counsel”). That said, “pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (internal quotation marks and citations omitted).
DISCUSSION
Kauffman alleges that NYPH discriminated against him in violation of Title VII, NYSHRL, and NYSHCL by denying his request for religious exemption to NYPH's vaccine mandate and then terminating him for failing to get vaccinated. (Compl.) NYPH seeks dismissal on three grounds. First, that Kauffman failed to plead a prima facie case of discrimination. Second, that the complaint should be dismissed as a matter of law because the DOH Mandate is dispositive and qualifies as undue hardship, precluding NYPH from liability. Third, that the complaint fails to plausibly plead any adverse employment action occurred because of Kauffman's religious beliefs. Finally, NYPH argues the Court should not extend supplemental jurisdiction over any state law claims, and that Kauffman should be denied leave to address any deficiencies in the complaint.
I. Kauffman's Religious Discrimination Claim Under Title VII
A. Pleading Standards
Under Title VII, an employer may not discriminate “against any individual ... because of such individual's ... religion ....” 42 U.S.C. § 2000e-2(a)(1). “The term ‘religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate ... an employee's ... religious observance or practice without undue hardship on the conduct of the employer's business.” Id. § 2000e(j). “[A]t the pleadings stage of an employment discrimination case, a plaintiff has a ‘minimal burden' of alleging facts ‘suggesting an inference of discriminatory motivation.'” Vega v. Hempstead Union Free School District, 801 F.3d 72, 85 (2d Cir. 2015) (citing to Littlejohn v. City of New York, 795 F.3d 297, 31011 (2d Cir. 2015)). The facts alleged, however, “need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination.” Littlejohn, 795 at 311.
To meet this minimal burden under Title VII, a plaintiff must plausibly allege that “(1) [he or she] held a bona fide religious belief conflicting with an employment requirement; (2) [he or she] informed [his or her] employers of this belief; and (3) [he or she] [experienced an adverse employment action] for failure to comply with the conflicting employment.” D'Cunha v. Northwell Health System, No. 23-476-CV, 2023 WL 7986441, at *2 (2d Cir. Nov. 17, 2023) (brackets in original). An employer, however, is not liable under Title VII if it can show that the requested accommodation “would cause the employer to suffer an undue hardship.” Id. at *2 (citing Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir. 2002)). The affirmative defense of undue hardship “may be raised by a pre-answer motion to dismiss under Rule 12(b)(6) ... if the defense appears on the face of the complaint.” Id. (citing Iowa Public Employees Retirement System v. MF Global, Ltd., 620 F.3d 137, 145 (2d Cir. 2010) (internal quotation marks and citation omitted)).
For purposes of the instant motion, NYPH does not challenge Kauffman's sincerely held religious beliefs. (Def. Mem. at 9 n.18.) Instead, NYPH asserts that Kauffman has not pled that his religious beliefs conflict with an employment requirement imposed by NYPH because the DOH Mandate, not NYPH policy, prevented NYPH from keeping Kauffman on as an employee. Kauffman argues that the DOH Mandate was not in effect (1) at the time he submitted his request for a religious exemption or (2) at the time of his termination, and thus the vaccine mandate was imposed by his employer, not by law. (Pl. Opp. at 6.) The Court addresses these arguments in turn, first in the context of the denial of the exemption itself and then termination.
1. Kauffman's Original Request For Exemption
The Complaint alleges that on August 12, 2021, NYPH sent an email denying Kauffman's request for a religious exemption from NYPH's mandatory COVID-19 vaccine. (Compl. at 10.) Thus, at the time Kauffman received his initial denial, NYPH policy, not the DOH Mandate, was in effect. See 10 N.Y.C.R.R. § 2.61(c) (DOH Mandate became effective August 26, 2021). Even so, Kauffman's claim of discrimination relating to the denial of his exemption request does not meet the pleading standards required to make a showing of religious discrimination. That is because the denial of Kauffman's exemption request alone does not qualify as an adverse employment action.
An adverse employment action has been defined as “a materially significant disadvantage with respect to the terms of [the plaintiff's] employment.” Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir.2004). Examples of materially significant disadvantages include termination, demotion, “a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities.” Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir. 2000). On April 16, 2024, however, the Supreme Court held that an employee challenging a job transfer under Title VII “does not have to show that the harm incurred was significant, serious, substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar,” abrogating this Circuit's decision in Williams. Now, the employee “must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.” Muldrow v. City Of St. Louis, Missouri, 144 S.Ct. 967, 967, 969 (2024).
Kauffman does not challenge a job transfer under Title VII, but instead the denial of his exemption request and subsequent termination. Neither the Supreme Court nor the Second Circuit has addressed whether Muldrow applies to all Title VII cases or just those alleging claims of forced job transfer. Regardless, Kauffman cannot show that the denial of the COVID-19 exemption itself qualifies as an adverse employment action under either standard, as the act of denying the exemption did not bring about any harm with respect to a condition of Kauffman's employment. Even after his exemption was denied, Kauffman continued to be employed just as he had been. The only point at which he was harmed was when he was terminated for not being vaccinated.
The parties have not cited to, and the Court is not aware of any case where denial of a COVID-19 exemption was deemed an adverse employment action as distinct from termination or some other consequence of being denied the exemption. Cf. Perez v. New York Presbyterian/Weill Cornell Medical Center, No. 23-CV-6152, 2024 WL 1514216, at *7 (S.D.N.Y. Apr. 8, 2024) (in a case alleging violations of the Americans with Disabilities Act, finding that denial of an accommodation request is not an adverse employment action). It thus is irrelevant that NYPH policy, not the DOH Mandate, was in effect at the time of the initial denial, since the denial alone does not establish a prima facie case of discrimination.
2. Kauffman's Termination
The first reference chronologically in the Complaint to an adverse employment action is Kauffman's allegation that he was “placed on leave” on September 15, 2021, after NYPH “removed the possibility of any and all religious exemptions” on August 30, 2021. (Compl. at ECF 10.) That date is after the August 21, 2021 effective date of the DOH Mandate.
Citing the DOH Mandate, NYPH argues Kauffman cannot prove a prima facie case of religious discrimination because the mandatory requirement Kauffman be terminated was imposed by law and not an employment requirement. (Def. Mem. at 11) (citing Yisrael v. Per Scholas, Inc., No. 01-CV-8290, 2004 WL 744485, at *3 (S.D.N.Y. Apr. 7, 2004) (holding that an employee failed to establish a prima facie case of religious discrimination under Title VII because the employer's requirement that the employee provide a Social Security Number was a requirement imposed by law, not the employer)). While the language “employment requirement” “has been used by courts in describing the prima facie elements of a Title VII claim based on a failure to accommodate, it does not come from the language of [Title VII] itself and thus does not warrant as strict of an interpretation as called for by [NYPH].” Shahid-Ikhlas v. New York And Presbyterian Hospital, Inc., No. 22-CV-10643, 2023 WL 3628151, at *4 (S.D.N.Y. May 5, 2023), R. & R. adopted, 2023 WL 3626435 (S.D.N.Y. May 24, 2023) (internal citations omitted).
Rather, to survive the motion to dismiss, the Court must determine whether Kauffman has plausibly pled that his religion was a motivating factor in his termination. Vega, 801 F.3d at 86. Kauffman has done so here. Kauffman has alleged that “a board of individuals [at NYPH] reviewed [his] exemption and determined that [his] religious/deeply held belief was not aligned with their own beliefs,” which resulted in the denial of his exemption and his subsequent discharge. (Compl. at ECF 9.) Kauffman has plausibly pled that the fact that NYPH's beliefs were not “aligned” with Kauffman's beliefs was a motivating favor in his termination.
NYPH argues that Kauffman did not plead he was discriminated against based on his religious beliefs. As support for its argument, NYPH cites the August 12, 2021 Denial as proof that religion was not a motivating factor in Kauffman's termination. (See Ex. A, Dkt. 15-1.) NYPH suggests that the Denial is what Kauffman refers to in the Complaint as the email he received on August 12, 2021. While the Court may consider documents referenced in the Complaint on a motion to dismiss, and the Vance Declaration represents that the Denial is a true and correct copy of NYPH's “response” to Kauffman's exemption request, it is far from clear that the Denial presented by NYPH contains what was in the email Kauffman alleges he received. The Denial is not in the form of an email, contains no indication of it being sent to anyone or who authored it, and Kauffman denies ever receiving it. Because the facts surrounding the Denial are disputed, the Court will not consider it for purposes of the instant motion. See Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006) (“even if a document is ‘integral' to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document”).
Kauffman thus has made out a prima facie case of religious discrimination with respect to his termination. As discussed next, however, his claim must be dismissed, based on undue hardship and the DOH Mandate. See Baker v. The Home Depot, 445 F.3d 541, 546 (2d Cir. 2006); Lowman v. NVI LLC, 821 Fed.Appx. 29, 31 (2d Cir. 2020) (“At the same time, an employer does not ultimately violate Title VII if the prospective accommodation ‘would cause the employer to suffer an undue hardship'”) (quoting Cosme, 287 F.3d at 158).
B. Undue Hardship
NYPH cannot be liable for religious discrimination based on Kauffman's termination. Under Title VII, undue hardship exists where “a burden is substantial in the overall context of an employer's business.” Groff v. DeJoy, 600 U.S. 447, 468 (2023). NYPH asserts that accommodating Kauffman's beliefs by permitting him to continue working at NYPH or allowing him to work remotely would impose a substantial burden as a matter of law, thus warranting dismissal. NYPH offers two reasons: (1) that the accommodation would require NYPH to violate state law; i.e., the DOH Mandate; and (2) that the accommodation would cause safety risks or the risk of legal liability to NYPH. (Def. Mem. at 2.) The Court agrees based on NYPH's first rationale.
Courts in this Circuit routinely hold that undue hardship exists as a matter of law where an accommodation, including with respect to COVID-19 vaccination, would require the defendant to violate state law, including the DOH Mandate. As the court stated in no uncertain terms in a similar case against NYPH, “[i]t is well established that Defendant would suffer an undue hardship as a matter of law if it was required to accommodate Plaintiff by exempting Plaintiff from the vaccine requirement, while allowing her to perform work that would require her to be vaccinated under the Mandate, because such accommodation would require Defendant to violate the law.” Shahid-Ikhlas, 2023 WL 3628151 at *5 (granting motion to dismiss); see also Parks v. Montefiore Medical Center, No. 23-CV-4945, 2024 WL 917330, at *2 (S.D.N.Y. March 4, 2024) (granting motion to dismiss where employer demonstrated violating DOH Mandate would cause undue hardship); Cagle v. Weill Cornell Medical, 680 F.Supp.3d 428, 436 (S.D.N.Y. Jun. 30, 2023) (granting motion to dismiss because “employer is [not] required by Title VII to accommodate a request for a religious exemption from the [DOH] Mandate at the cost of violating...New York law”); D'Cunha v. Northwell Health Systems, No. 1:22-CV-0988, 2023 WL 2266520, at *3 (S.D.N.Y. Feb. 28, 2023) (granting motion to dismiss Title VII claim regarding mandatory COVID-19 vaccination because exempting plaintiff from vaccination would create undue hardship), aff'd 2023 WL 7986441 (2d Cir. Nov. 17, 2023); Riley v. New York City Health and Hospitals Corp., No. 22-CV-2736, 2023 WL 2118073, at *4 (S.D.N.Y. Feb. 17, 2023) (granting motion to dismiss Title VII claim seeking religious exemption from DOH Mandate because “Title VII cannot be used to require employers to break the law”); Does 1-2 v. Hochul, 632 F.Supp.3d 120, 145 (E.D.N.Y. 2022) (granting motion to dismiss Title VII claim seeking exemption from DOH Mandate because it would impose an undue hardship on the defendant in the form of requiring it to violate state law).
Kauffman does not dispute that the NYPH is a covered healthcare entity under Section 2.61 of the DOH Mandate or that he qualifies as personnel under the same. Accordingly, NYPH could not have granted him an exemption without violating the law, and he cannot maintain a claim for religious discrimination based on his termination.
Instead, Kauffman asserts that NYPH's motion should be denied with respect to undue hardship because the DOH Mandate was not in effect during the relevant time period (Pl. Opp. at 3, 6), citing Dr. A v. Hochul, where, on September 14, 2021, the district court issued a temporary restraining order preventing enforcement of Section 2.61. No. 21-CV-1009, 2021 WL 4189533, at *1 (N.D.N.Y. Sept. 14, 2021). The Dr. A preliminary injunction was subsequently vacated by the Second Circuit, and thus is no longer binding. See We The Patriots USA, 17 F.4th at 272, 296 (2d Cir. 2021) (finding that the plaintiffs were not likely to succeed on their constitutional claims). Still, Kauffman argues that because the temporary restraining order enjoined enforcement of the DOH Mandate at the time Kauffman was placed on leave and terminated, no undue hardship existed. (Pl. Opp. at 5-6.) But Courts have uniformly rejected this argument as well.
One month later, the district court converted the temporary restraining order to a preliminary injunction. Dr. A. v. Hochul, 567 F.Supp.3d 362, 377 (N.D.N.Y. 2021), vacated and remanded sub nom. We the Patriots USA, Inc. v. Hochul, No. 21-2179, 2021 WL 5103443 (2d Cir. 2021), and rev'd in part, vacated in part sub nom. We The Patriots USA, Inc. v. Hochul, 17 F.4th 266 (2d Cir. 2021).
It is irrelevant that on September 14, 2021, the DOH was temporarily enjoined from enforcing the DOH Mandate under the district court's initial ruling in Dr. A. The Dr. A ruling did not permit covered entities, like NYPH, to ignore the state mandate simply because a temporary injunction was in effect. See e.g., D'Cunha, 2023 WL 7986441, at *3 n.3 (explaining that Dr. A temporary injunction did not detract from undue hardship); Algarin v. NYC Health + Hospitals Corp., 678 F.Supp.3d 497, 511 (S.D.N.Y. 2023) (same), aff'd sub nom. Algarin v. New York City Health & Hospitals. Corp., No. 23-1063, 2024 WL 1107481 (2d Cir. March 14, 2024); Cagle, 680 F.Supp.3d at 437 (same); Dennison v. Bon Secours Charity Health System Medical Group, P.C., No. 22-CV-2929, 2023 WL 3467143, at *5, n.5 (S.D.N.Y. May 15, 2023) (same). As explained in Dennison, “[t]hat a court has temporarily, and then preliminary, enjoined enforcement does not mean employers were free, let alone required, to ignore the [DOH Mandate]. Were the rule otherwise, employers would be required to accurately predict the outcome of litigation in order to avoid liability for discrimination on the one hand, or liability for violating state law on the other.” 2023 WL 3467143 at *5 n.5 (citations omitted). Thus, the existence of the temporary injunction did not mean NYPH did not have to follow the DOH Mandate at the time Kauffman was terminated. To the contrary, the DOH Mandate “was still valid law during the injunction period,” D'Cunha, 2023 WL 7986441 at *3 n.3.
Kauffman raises an additional argument. He asserts, although not in his Complaint, that he was permitted to perform his duties as a full-time hospital employee, without vaccination, for a period of nine months, including December 2020, during the height of the COVID-19 pandemic. (Pl. Opp. at 6.) Kauffman submits that his having been allowed to work without having been vaccinated rebuts any undue hardship NYPH argues it may have faced by keeping Kauffman as an unvaccinated employee. (Id.) But regardless of what may have happened in December 2020 or ensuing months, NYPH was required by law to comply with the DOH Mandate once it was enacted in August 2021.
Similarly, the Court finds unavailing Kauffman's argument that at the time of the filing of his opposition to the instant motion, NYPH now allows for an exemption from the vaccine requirement for a religious belief. Any policy NYPH has now is not relevant to
Accordingly, NYPH has demonstrated, based on Kauffman's Complaint and matters of which the Court may take judicial notice, that it would have faced undue hardship by violating the law if it had continued to employ Kauffman without his having been vaccinated. His Title VII claim should be dismissed.
II. State Law Claims
Federal district courts have supplemental jurisdiction over state-law claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Extending jurisdiction is discretionary, see City of Chicago v. International College of Surgeons, 522 U.S. 156, 173 (1997), and a district court “may decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
To determine whether to exercise supplemental jurisdiction a district court must balance the traditional “values of judicial economy, convenience, fairness, and comity.” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988). Generally, “when the federal claims are dismissed the ‘state claims should be dismissed as well.'” In re Merrill Lynch Ltd. Partnerships Litigation, 154 F.3d 56, 61 (2d Cir. 1998) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)).
Here, because the Title VII claims should be dismissed, the Court should decline supplemental jurisdiction over Kauffman's claims under state and city laws. See Parks, Plaintiff's Title VII claim of what transpired in 2021 under the DOH Mandate. (See Pl. Opp. at 3.) 2024 WL 917330 at *4 (declining to extend supplemental jurisdiction over NYSHRL and NYCHRL claims after dismissing federal claims); Riley, 2023 WL 2118073 at *6 (same).
III. Leave To Amend
NYPH argues that the Complaint should be dismissed with prejudice without leave to amend. (Def. Mem. at 3.) Pro se plaintiffs are typically given at least one opportunity to amend their complaint, unless amending the complaint would be futile. Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014); Tocker v. Philip Morris Companies, Inc., 470 F.3d 481, 491 (2d Cir. 2006). Here, while the Complaint fails to state a claim for relief, the Court cannot definitively say that Kauffman would be unable to allege any facts that would entitle him to pursue his claims. See We The Patriots USA, 17 F.4th at 370 (“it may be possible under the [DOH Mandate] for an employer to accommodate - not exempt -employees with religious objections, by employing them in a manner that removes them from the [DOH Mandate]'s definition of ‘personnel,'”) (emphasis in original); see e.g., Parks, 2024 WL 917330 at *5 (granting leave to amend religious discrimination claim despite employer demonstrating undue hardship under DOH Mandate “[i]n light of the liberal construal afforded to complaints filed by pro se plaintiffs...”); Cagle, 680 F.Supp.3d at 440 (granting leave to amend religious discrimination claim because plaintiff, a practical nurse, may have been able to allege facts showing she did not fall under the definition of “personnel” under the DOH Mandate). But see Moore v. Montefiore Medical Center, No. 22-CV-10242, 2023 WL 7280476, at *8 (S.D.N.Y. Nov. 3, 2023) (dismissing with prejudice pro se plaintiff's Title VII discrimination claims because “claims [would] ultimately fail due to the undue hardship [employer] would face by granting [plaintiff's] exemption request” under DOH Mandate). Accordingly, Kauffman should be given an opportunity to replead in the event he has a good faith basis to do so.
CONCLUSION
For the foregoing reasons, I recommend that NYPH's motion be GRANTED and the Compliant be dismissed without prejudice to leave to amend. To the extent not discussed herein, the Court has considered all of Plaintiff's arguments and determined them to be without merit.
DEADLINE FOR OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Any party shall have fourteen (14) days to file a written response to the other party's objections. Any such objections and responses shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. Any request for an extension of time for filing objections must be addressed to Judge Torres. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.
SO ORDERED.