Opinion
Index No. EF001589-2022
12-12-2023
Alyson Mehr, Plaintiff, v. The Mount Sinai Hospital and MOUNT SINAI HOSPITALS GROUP, Defendants.
Law Offices of William Cafaro - Plaintiff William Cafaro Amit Kumar Akerman LLP - Defendants Joseph McEvoy Brittany Buccellato
Unpublished Opinion
Law Offices of William Cafaro - Plaintiff William Cafaro Amit Kumar
Akerman LLP - Defendants Joseph McEvoy Brittany Buccellato
E. Loren Williams, J.
The following papers were read on defendants' motion for summary judgment dismissing the complaint:
Seq. #1
Notice of Motion/Affidavits/Exhibits NYSCEF Doc # 21-31
Affidavits In Opposition/Exhibits NYSCEF Doc # 34-55, 61-65
Reply Affidavits/Exhibits NYSCEF Doc # 67-71
BACKGROUND AND PROCEDURAL HISTORY
This is a disability and pregnancy discrimination and failure to accommodate case , brought under the New York State Human Rights Law ("NYSHRL") (Executive Law § 296). On March 18, 2022, plaintiff commenced this action to challenge her December 7, 2021, termination for failure to be fully vaccinated pursuant to the defendants' purported vaccination mandate policy. On May 12, 2022, issue was joined. On January 9, 2023, plaintiff filed the Note of Issue. On May 9, 2023, defendants filed the current motion for summary judgment.
In response to the defendants' motion, plaintiff withdrew her retaliation claims.
In her complaint, plaintiff alleges that she was prevented for health reasons for completing the two-shot vaccination series following a severe reaction to the first dose, which included chest pain, arm numbness, and cardiac symptoms documented by electrocardiogram ("EKG"). The symptoms were completely debilitating and persisted for three weeks. Plaintiff was also pregnant at the time, and provided a letter from her doctor and mid-wife recommending she not receive the second dose due to those complications.Plaintiff alleges that she requested a medical exemption from the vaccination mandate, which defendants denied. Plaintiff also claims the defendants had a complicated interactive process to grant accommodations, that defendants did not review the medical information she submitted, and refused to consider accommodations such as deferral of the second dose until after she had given birth or working remotely. Accordingly, plaintiff alleges that she was terminated on the basis of her disability and/or pregnancy, that defendants failed to reasonably accommodate her, and that defendants treated non-disabled and non-pregnant employees better. She further alleges she was replaced by a non-pregnant, non-disabled individual.
Following full discovery, the following facts in the record are undisputed, or not disputed with admissible evidence. On February 28, 2011, defendants hired plaintiff as a program assistant at its Icahn School of Medicine at Mount Sinai (the "School"). The School, a medical school, is overseen by the Mount Sinai Hospital Group (the "Hospital") and generally follows the Hospital's policies. The School is not an independent entity from the Hospital, and the Hospital sets policy for every entity within its system.
During plaintiff's employment, her job duties and roles changed several times, approximately every year and a half to two years, serving in a variety of titles. In July 2020, plaintiff was promoted to the title of Director of Strategic Partnerships and Alliances in the School's Office of Diversity and Inclusion. Plaintiff's duties in this role included coordinating events, such as symposia, retreats, and conferences. As part of her job, plaintiff was required to attend the events she planned. At the time, due to the COVID-19 pandemic, the events were virtually conducted.
Prior to the pandemic, plaintiff had an office at the School out of which she worked. She worked fully on-site five days per week. Plaintiff claims she took the Director position on the condition that it be permanently remote. She claims she told Dr. Angela Palermo, her immediate supervisor, that she would only take the position if it was fully remote, but could not recall Dr. Palermo's response other than that plaintiff took the position. Dr. Gary Butts, the Dean of Diversity Programs for the School, however, attests that the Director position was not intended to be permanently remote as the job duties required an in-person presence when events were given in-person, as they began to be. In further contrast to plaintiff's position, it is undisputed she signed a Remote Work Agreement in September 2021 which explicitly provided that the School could revoke or modify her remote work arrangement at any time. The agreement further explicitly stated that the remote work agreement was not a guarantee that she could work remotely for any specific term. At various times in the record, plaintiff attended events and work-related meetings in-person.
On August 12, 2021, defendants issued a directive that all staff throughout the Mount Sinai Health System, including academic sites, were mandated to receive the COVID-19 vaccination, "excluding employees who work fully remotely and have a current Remote Work Agreement in place." The policy had limited exceptions for medical or religious reasons. At the time, the parties do not dispute that hospitals in the Mount Sinai health system were overrun with patients critical ill from COVID-19, and that the majority of individuals hospitalized or dying from the illness were unvaccinated.
On August 20, 2021, defendants issued an updated directive that required all employees to be vaccinated, even those with remote work agreements, citing to a change in New York State's mandates. There remained limited exemptions for medical or religious reasons, but the memo noted the exemptions were very narrow and anyone with such exceptions would have to undergo weekly PCR testing. Thus, it is clear from the record that defendants have the ability to generally accommodate individuals who for religious or medical reasons cannot receive the vaccination, with weekly PCR testing and remote work. The directives indicated that all employees had to receive the first dose of the COVID-19 vaccine by September 13, 2021, and, if they did not, defendants would begin the termination process.
On January 19, 2021, plaintiff received the first dose of the vaccine. Afterwards, she began experiencing numbness in her left arm, sharp pains up and down her chest, fatigue, elevated heart rate, and chest pain. According to plaintiff, following these complaints she had an abnormal ECG, with possible diagnosis of anterior infarct. The etiology of these complaints is not established in the record, though plaintiff's doctors apparently felt it was a reaction to the vaccine rather than some other cause. The parties do not dispute that plaintiff's symptoms continued for approximately 21 days and that afterwards, her symptoms resolved. Plaintiff contends that, as an anterior infarct had not been ruled out, she does not know whether she has any permanent damage.
On September 1, 2021, plaintiff submitted a request for medical exemption under the directive to the defendants' Vaccine Exemptions Committee (the "Committee"). The Committee was formed to evaluated exemption requests to the vaccination policy and included doctors and adminstrators. As part of her submission, she included a letter from a Dr. Pellet, on the faculty of Mount Sinai, who opined that it was not advised that plaintiff receive a second dose due to her severe allergic reaction to the first.
On September 6, 2021, the Committee requested additional information as well as a release to obtain relevant medical information, which plaintiff provided, though with apparently some difficulty due to technical issues with the defendants' systems. On September 28, 2021, Dr. Rachel Miller, an immunologist who had examined plaintiff, told plaintiff that she could not support her application for a medical exemption as there was no risk of anaphylaxis under CDC guidelines, but could not explain why plaintiff had an adverse reaction. This was apparently the consistent recommendation of other immunologists that plaintiff saw, who relied on the CDC guidelines with respect only to risk of anaphylaxis. In summary, the record shows the doctors generally disregarded plaintiff's severe reaction to the vaccination, as it was not considered anaphylactic-based, the only grounds on which the defendants would allow a medical exemption.
Notwithstanding the opinions of immunologists, plaintiff submitted letters from her primary care physician and two OB/GYNs, as well as her nurse midwife, all recommending she not receive the second dose due to her prior reaction, which was an inflammatory response that would be contraindicated with pregnancy. Due to risks inherent to the Johnson & Johnson vaccine, one doctor said she should not take that one either. One of her obstetrical doctors, Dr. Jane Owen, ultimately deferred to the opinion of an immunologist, in compliance with defendants' clinical guidelines she had to follow.
On October 6, 2021, the Committee denied plaintiff's exemption request, relying on Dr. Miller's finding that she failed to establish she suffered an immediate anaphylactic response, and thus could receive her second dose with supervision by medical personnel. The Committee gave plaintiff an opportunity to submit additional materials, which she did.
On November 23, 2021, the Committee informed plaintiff that her condition did not preclude her from receiving COVID-19 vaccination and had until November 30, 2021, to complete the second dose. Plaintiff did not meet the deadline. On December 3, 2021, plaintiff was notified she was terminated, effective December 7, 2021.
Plaintiff's position was eliminated following her termination and she was not replaced. Her duties, however, were spread amongst other staff who, were either fully vaccinated, not disabled, and/or not pregnant like she was. Notwithstanding plaintiff's allegations, plaintiff concedes there is no evidence in the record that disabled and/or pregnant employees were disciplined or terminated more often than other employees.
In its motion for summary judgment, defendants argue that plaintiff's pregnancy and disability discrimination claims failed because a severe reaction to the vaccine was a temporary, non-severe condition and was not a qualifying disability under the NYSHRL, that the vaccination policy applied equally to all personnel, not just those who were pregnant, that plaintiff's position was eliminated after her termination and thus she was not replaced by someone outside her protected class, and plaintiff had no evidence that defendants treated disabled or pregnant persons differently. As to the failure to accommodate claim, plaintiff argues that plaintiff's requested accommodations would have required Mount Sinai to violate State mandates in place at the time.
In opposition, plaintiff maintains there are triable issues of fact that prevent summary judgment. First, plaintiff notes that the NYSHRL was recently expanded to cover more conduct, similar to the New York City Human Rights Law, and adopted the "mixed motive" framework, i.e. that defendants must establish that discrimination played no role at all in the termination decisions. Plaintiff further argues that her vaccine side effects were sufficiently severe to be considered a disability and that, in any event, plaintiff was perceived as having a disability (albeit not pled in the complaint as a theory of relief). Plaintiff maintains the record shows she suffered a heart attack as a result of her vaccine reaction. Plaintiff argues that, given she was already working almost entirely remote, that such an accommodation would not be an undue burden, and that the failure to do so was discriminatory on the basis of disability. Finally, plaintiff argues that defendants' proffered justifications were pretextual, as the NYS vaccine mandate, the law upon which defendants maintain they would violate by accommodating her, did not apply to her or the school at which she worked. In any event, plaintiff maintains that the defendants applied the mandate discriminatorily towards persons who suffered severe adverse reactions from vaccination, and further claimed she had a pre-existing allergy to vaccination. Moreover, defendants' actions were motivated, at least in part, by her disability and/or pregnancy.
In reply, defendants argue that plaintiff failed to establish that she had a recognized disability under the NYSHRL and that her new claim that she had suffered a heart attack as a result of the vaccine was never presented to the Committee or documented in the record. Defendants further argue that the vaccination policy was applied to all employees and did not single out those with disabilities or who were pregnant. Moreover, a deviation from the policy would have violated 10 NYCRR § 2.61. Defendants also assert that it did engage in an interactive process to accommodate the plaintiff's medical exemption and that her job duties required her to work in-person at times. Finally, defendants note that plaintiff's newly asserted perceived disability arguments were not alleged in the complaint and that plaintiff cannot plead a new theory of recovery in opposition to a motion for summary judgment.
DISCUSSION
A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law with proof in admissible form sufficient to establish the lack of any material issues of fact (see Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Once a showing of entitlement to summary judgment has been made, the burden shifts to the party opposing the motion for summary judgment, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see CPLR 3212 [b]; Alvarez v Prospect Hospital, supra; Zuckerman v City of New York, supra).
The record reflects both parties were confronted with difficult questions. An employee, who suffered a highly idiosyncratic reaction to the medication and was advised by her own doctors not to subject herself again, and an employer/health care provider who was on the front lines of a pandemic and confronting state and federal mandates on vaccination requirements. The only question the Court must answer here, however, is whether plaintiff's allegations are remediable within the confines of the New York State Human Rights Law claims upon which she relies regarding disability and pregnancy, which she must show to meet her prima facie case.Initially, prior to the commencement of this action, the Human Rights Law was significantly expanded to align more closely with the standards of the New York City Human Rights Law (NYCHRL), with Section 300 of the law now mirroring the language in the City's law (see NY Executive Law § 300; see also Williams v New York City Hous. Auth., 61 A.D.3d 62, 66 [1st Dept 2009]). The Court is unaware of, and no party has provided, any binding interpretation of this change from the Second Department, but it is clear that reference to cases decided under the City Human Rights Law's standards is appropriate, while reliance on any pre-amendment cases or decisions interpreting the NYSHRL under federal law is inappropriate (see Kwong v City of New York, 204 A.D.3d 442, 445 fn. 1 [1st Dept 2022], lv to appeal dismissed, 38 N.Y.3d 1174 [2022]).
To establish a claim for discrimination under the NYSHRL, plaintiff must establish "that (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" (Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 305 [2004] (citing Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629 [1997]).
If the plaintiff meets her burden to establish her prima facie case, then the burden shifts to defendants to "rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision. In order to nevertheless succeed on [her] claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason" (Melman v Montefiore Med. Ctr., 98 A.D.3d 107, 113-14 [1st Dept 2012] (quoting Forrest, 3 N.Y.3d at 305)).
There is no dispute that plaintiff was qualified for her job or that she was terminated. The question is whether plaintiff was a member of a protected class and whether there was any inference of discrimination in her termination.
Initially, plaintiff failed to establish a prima facie case of discrimination on the basis of her pregnancy, as there is no evidence presented of discrimination on the basis of her status as a pregnant person. She points to nothing in the record to support that claim and, indeed, the events leading up to her termination focused exclusively on vaccination status. Rather, at best her pregnant condition was simply a factor in why she did not take the vaccination; there is no record of such discrimination itself by the defendants. Accordingly, defendant is granted summary judgment on plaintiff's pregnancy discrimination claim.
As to the disability claim, Executive Law § 292(21) defines "disability" to mean
(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.Under the newly amended standards, to prevail plaintiff need only show "differential treatment of any degree based on a discriminatory motive" (Gorokhovsky v New York City Hous. Auth., 552 Fed.Appx. 100, 102 [2d Cir 2014]).
Given the Legislature's direction to provide a liberal interpretation of the NYSHRL, plaintiff has satisfactorily established that she was "disabled." Plaintiff has set forth a "medical impairment demonstrable by medically accepted clinical or laboratory diagnostic techniques" (Executive Law § 292(21)), such as here an EKG showing heart abnormalities flowing from her first vaccine dose, that prevented her from complying with the defendants' vaccination mandate, a term and condition of her employment, absent a reasonable accommodation. Indeed, from the record plaintiff may be able to show that, despite defendants' argument the condition was temporary, the condition is either permanent or will reoccur with the demanded second vaccination round. Plaintiff has met her burden to establish her prima facie case, as defendants did not accommodate her request, and terminated her instead, because her disability did not allegedly meet defendants' own strict definition. This is sufficient to establish an inference of discrimination, as the burden is minimal (Melman v Montefiore Med. Ctr., 98 A.D.3d 107, 115 [1st Dept 2012]).
Thus, the burden shifts to defendants to show legitimate non-discriminatory reasons for their adverse actions against the plaintiff (see Melman, 98 A.D.3d at 113-14). Defendants have met their burden to demonstrate they had legitimate, non-discriminatory reasons for their actions, namely that the vaccination mandate was issued based on a State mandate applicable to healthcare institutions, that they created a process for individuals to apply for exemptions on medical reasons, and that plaintiff failed to meet the standards they set for the exemption, which apparently only allowed exemption for anaphylactic responses to the vaccine doses. The reasons for this appeared to be a laudable and good faith attempt to prevent disease in a healthcare setting.
Accordingly, the burden shifts back to the plaintiff to demonstrate that defendants' "conduct was a pretext to mask a discriminatory intent or was in part motivated by discrimination" (Bilitch v New York City Health & Hosps. Corp., 194 A.D.3d 999, 1002 [2d Dept 2021] (quoting Messana v. Long Is. R.R. Co., 126 A.D.3d 677, 678 [2d Dept 2015]). Plaintiff can meet its burden by showing that the defendants' proffered reasons "given for the plaintiff's termination were 'false' and, therefore, pretextual" (La Marca-Pagano v Dr. Steven Phillips, P.C., 129 A.D.3d 918, 922 [2d Dept 2015] (quoting Browne v. Board of Educ., 122 A.D.3d 563, 564 [2d Dept 2014]). Here, plaintiff established there are triable issues of fact as to whether defendants' proferred reasons for her termination were "false, misleading, or incomplete" (Browne, 122 A.D.3d at 564).
For example, defendants' very strict interpretation of the vaccine exemption, where it ignored the ample evidence submitted by plaintiff because she did not narrowly show it was an allergy produced by a histamine reaction, and which they required her to support solely with the opinion of an immunologist, to the exclusion of all other disciplines. They claim this was to comply with State mandates, as they cannot be forced to break the law. But the mandate is not as strict nor specific as defendants' allege. Moreover, plaintiff's severe reaction appeared to be cardiac-based, complicated by her pregnancy, all evidence that defendants ignored in favor of their narrow interpretation of broad governmental guidelines that did not force such a narrow view of medical exemptions. Accordingly, a jury could find that defendants' reasons for the denial of the exemption, and subsequent termination of plaintiff, was false, misleading, incomplete, or in part motivated by discrimination against individuals who had a disability, i.e. a severe, debilitating, but not anaphylactic, reaction to the mandated vaccine.
This is similarly the case with respect to plaintiff's failure to accommodate claim. As the Court has already determined that plaintiff is "disabled" under the amended NYSHRL standards, the Court next turns to whether defendants failed to provide a reasonable accommodation to that disability. Under Executive Law § 292(21-e), "reasonable accommodation" is defined as
actions taken which permit an employee, prospective employee or member with a disability, or a pregnancy-related condition, to perform in a reasonable manner the activities involved in the job or occupation sought or held and include, but are not limited to, provision of an accessible worksite, acquisition or modification of equipment, support services for persons with impaired hearing or vision, job restructuring and modified work schedules; provided, however, that such actions do not impose an undue hardship on the business, program or enterprise of the entity from which action is requested
Though the plaintiff makes arguments about the difficulty of the defendants' computer interface that is part of the vaccine exemption process, the record reflects that the defendants did engage in a good faith, interactive process for the processing of vaccine-related accommodations sufficiently for purposes of the NYSHRL (see Jacobsen v New York City Health and Hosps. Corp., 22 N.Y.3d 824, 837 [2014]). Accordingly, the plaintiff must show that a reasonable accommodation exists that would have enabled her to perform her job duties. And indeed, plaintiff established that her requested accommodations were reasonable, including continuing to work from home as she had done for years, delaying her second dose until after she gave birth, or, if required to be in-person, the testing regime for which the defendants' policy already provided.
Accordingly, the burden shifts to the defendants to show that this reasonable accommodation would present an undue burden to its programs. There are, however, triable issues of fact as to whether plaintiff's proposed accommodation would constitute an undue burden, particularly as the broad governmental mandates upon which defendants rely contain exemptions for medical conditions. As plaintiff already worked from home, and had minimal needs to be in-person as an essential function of her job, defendants failed to eliminate all triable issues of fact that accommodating her would be an undue burden (see Jacobsen, 22 N.Y.3d at 840 ["in light of the totality of the work conditions existing at the central office at the time the transfer was requested, plaintiff could have reasonably performed his essential job duties by handling the office work there without visiting construction sites that contained dangerous amounts of environmental dust"].
Given the Court's determinations above, the parties remaining contentions need not be considered, have been considered and do not change the outcome, or are moot/academic in light of the Court's determinations herein.
Accordingly it is, ORDERED that defendants' motion for summary judgment is GRANTED IN PART as to plaintiff's claim for pregnancy discrimination but is DENIED IN PART as to plaintiff's claims for disability discrimination and failure to accommodate that disability; and it is further
ORDERED that the parties are directed to appear for a trial scheduling conference on January 22, 2024 at 11:00 a.m., in person.
The foregoing constitutes the Decision and Order of the Court.