Opinion
5:22-CV-1401 (FJS/TWD)
2023-10-13
Fatou TANDIAN, Plaintiff, v. STATE UNIVERSITY OF NEW YORK, Upstate Medical University; Kathleen Hochul, Governor of New York; and James McDonald, M.D., Commissioner, New York State Department of Health, Defendants.
APRIL FORBES, ESQ., PACIFIC JUSTICE INSTITUTE, INC., 350 Northern Boulevard, Suite 324, Box 1061, Albany, New York 12204-1000, Attorneys for Plaintiff. AIMEE COWAN, AAG, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL - SYRACUSE REGIONAL OFFICE, 300 South State Street, Suite 300, Syracuse, New York 13202, Attorneys for Defendants.
APRIL FORBES, ESQ., PACIFIC JUSTICE INSTITUTE, INC., 350 Northern Boulevard, Suite 324, Box 1061, Albany, New York 12204-1000, Attorneys for Plaintiff. AIMEE COWAN, AAG, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL - SYRACUSE REGIONAL OFFICE, 300 South State Street, Suite 300, Syracuse, New York 13202, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
SCULLIN, Senior Judge
I. BACKGROUND
Plaintiff worked for Defendant State University of New York, Upstate Medical University ("SUNY Upstate") for approximately seven years as a registered nurse. See Dkt. No. 14, Amended Compl., at ¶¶ 16, 31. Plaintiff asserts that, on June 25, 2021, the former New York State Governor, Andrew Cuomo, rescinded a public health emergency declaration that he had previously declared throughout the state due to the COVID-19 pandemic. See id. at ¶ 19. Nearly two months later, on August 18, 2021, the former New York State Commissioner of Health, Howard Zucker, implemented a public health emergency declaration requiring all individuals working in general hospitals and nursing homes in New York to be fully vaccinated against COVID-19. See id. at ¶ 20. On that day, the New York State Department of Health ("DOH") mandated that all healthcare workers who interact with patients or staff of medical facilities must receive one of the available COVID-19 vaccines, unless he or she is granted a medical or religious exemption under 10 N.Y.C.R.R. § 2.61 ("Section 2.61"). See id. at ¶ 21. Ultimately, DOH modified Section 2.61 so that it did not include any religious exemptions for individuals who work in healthcare facilities in New York and interact with patients or staff; and, as modified, it went into effect on November 24, 2021. See id. at ¶ 28.
Unless otherwise noted, the facts in this section come from Plaintiff's Amended Complaint and are presumed true for the purposes of deciding these motions.
Around the same time, on November 5, 2021, the Center for Medicare and Medicaid Services ("CMS") implemented Interim Final Rule, 86 Fed. Reg. 61555, 61615, which mandated that all healthcare facilities receiving Medicare or Medicaid require staff to be vaccinated against COVID-19 ("the CMS Mandate"). See id. at ¶ 29. Unlike Section 2.61, the CMS Mandate included exemptions for individuals with religious beliefs or medical conditions who could not receive any COVID-19 vaccines. See id. at ¶ 30.
Plaintiff, who is a Muslim woman, contends that she could not receive any COVID-19 vaccine(s) without betraying her sincerely held religious beliefs regarding divine immunity and divine protection, along with her avoidance of certain substances from entering the body that are contrary to her faith. See id. at ¶ 31. Plaintiff alleges that she therefore submitted a request to SUNY Upstate for a "reasonable accommodation" in that she be exempted from complying with Section 2.61 pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), which she submitted prior to the regulation's exclusion of religious exemptions. See id. at ¶¶ 32-33. Nonetheless, on October 4, 2021, SUNY Upstate's Religious Exemption Review Panel ("Review Panel") denied Plaintiff's request based on its determination that Plaintiff failed to demonstrate that she had sincerely held religious beliefs that conflicted with Section 2.61. See id. at ¶¶ 34-36. Plaintiff asserts that the Review Panel approved her co-workers' requests for exemptions based on sincerely held religious beliefs prior to Section 2.61's modification, as well as for employees who could not receive COVID-19 vaccines due to medical conditions. See id. at ¶¶ 37-39. Plaintiff appealed the Review Panel's denial of her request for a religious exemption under Section 2.61 on October 14, 2021, but the Review Panel again denied her request two weeks later. See id. at ¶¶ 40-41.
Additionally, on September 28, 2021, SUNY Upstate placed Plaintiff on leave without pay because she had not received a COVID-19 vaccine or exemption. See id. at ¶ 43; see also Dkt. No. 21-5. After placing Plaintiff on leave, SUNY Upstate claimed that it would be an undue hardship on it to grant Plaintiff's request for an exemption from compliance with Section 2.61. See Dkt. No. 14 at ¶ 45. SUNY Upstate ultimately terminated Plaintiff on June 16, 2022, due to her inability to comply with Section 2.61. See id. at ¶ 46.
Plaintiff commenced this action, naming SUNY Upstate as the only defendant, on December 28, 2022. See generally Dkt. No. 1, Compl. SUNY Upstate then filed a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on March 16, 2023. See Dkt. No. 11. The next month, on April 4, 2023, Plaintiff filed an Amended Complaint, which additionally named as defendants New York State Governor Kathleen Hochul and DOH Commissioner James McDonald, M.D. (hereinafter collectively referred to as the "Executive Defendants"). See generally Dkt. No. 14. Plaintiff asserted the following causes of action in her Amended Complaint:
(1) Termination on the basis of religion in violation of Title VII against SUNY Upstate;See id. at ¶¶ 47-176.
(2) Failure to engage in meaningful dialogue and failure to provide reasonable accommodations in violation of Title VII against SUNY Upstate;
(3) Seeking injunctive and declaratory relief, pursuant to the "42 U.S.C. § 1983 religion clauses," and based on violations of the Free Exercise Clause of the First Amendment to the United States Constitution, against the Executive Defendants;
(4) Seeking injunctive and declaratory relief, pursuant to 42 U.S.C. § 1983, based on violations of the Establishment Clause of the First Amendment to the United States Constitution, against the Executive Defendants;
(5) Seeking injunctive and declaratory relief, pursuant to 42 U.S.C. § 1983, based on violations of the Supremacy Clause in Article VI, clause 2 of the United States Constitution, against the Executive Defendants;
(6) Seeking injunctive and declaratory relief, pursuant to 42 U.S.C. § 1983, based on violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, against the Executive Defendants; and
(7) Seeking a declaration that Section 2.61 is unconstitutional under the separation of powers clauses of the United States Constitution and the New York State Constitution.
Although it is not completely clear based on the heading of this cause of action, it appears that Plaintiff seeks this declaration against the Executive Defendants so as to require them to accept religious exemptions from compliance with Section 2.61. See Dkt. No. 14 at ¶¶ 164-176.
In light of Plaintiff's Amended Complaint, SUNY Upstate withdrew its motion to dismiss and filed a new motion to dismiss directed toward Plaintiff's Amended Complaint. See Dkt. No. 21. The Executive Defendants then filed their own motion to dismiss Plaintiff's Amended Complaint, see Dkt. No. 24, which they supplemented in an amended motion to dismiss on June 5, 2023, see Dkt. No. 39, brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Both SUNY Upstate's and the Executive Defendants' motions are pending before the Court. See Dkt. Nos. 21, 39.
II. DISCUSSION
A. Motion to dismiss standard
"When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept the material facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff's favor." LMC Indus. Contractors, Inc. v. Dominion Energy Transmission, Inc., No. 5:20-CV-677 (FJS/ATB), 2021 WL 3737727 *2, 2021 U.S. Dist. LEXIS 159441 (N.D.N.Y. Aug. 24, 2021) (citing Interpharm, Inc. v. Wells Fargo Bank, Nat'l Ass'n, 655 F.3d 136, 141 (2d Cir. 2011) (citation omitted)). However, the court is not required to credit legal conclusions, bare assertions, or conclusory allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678-81, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted). As such, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Id. at 678, 129 S.Ct. 1937 (quoting [Bell Atl. Corp. v. Twombly, 550 U.S.] at 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing [Twombly, 550 U.S.] at 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929). Therefore, under this standard, a plaintiff must support her claims with sufficient factual allegations to show "more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). Thus, if the plaintiff has not " 'nudged [her] claims' . . . 'across the line from conceivable to plausible,' " the court must dismiss the complaint. Id. at 680, 129 S.Ct. 1937 (quoting [Twombly, 550 U.S. at 570, 127 S.Ct. 1955]). " 'The standard for a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is "substantively identical" to the 12(b)(6) standard.' " Rehab. Support Servs., Inc. v. City of Albany, No. 1:14CV0499 (LEK/RFT), 2015 U.S. Dist. LEXIS 86081 *6 (N.D.N.Y. July 2, 2015) (Kahn, J.) (quoting Berkovitz v. Vill. of S. Blooming Grove, No. 09 CIV 0291, 2010 U.S. Dist. LEXIS 93563, 2010 WL 3528884, at *5 (S.D.N.Y. Sept. 3, 2010) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003))).
B. Plaintiff's claims against the Executive Defendants
The threshold issue that Plaintiff and the Executive Defendants dispute with respect to the Executive Defendants' motion to dismiss is whether Plaintiff's claims against them are moot as a result of DOH's announcement of its intention to repeal Section 2.61 and not to enforce it going forward. See Dkt. No. 39-2 at 8-4; Dkt. No. 40 at 7-10. "The doctrine of mootness arises from the 'case or controversy' requirement contained in Article III of the United States Constitution. The controversy between the parties must be a live one at all stages of federal court proceedings as a prerequisite to federal court jurisdiction." Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 59 (2d Cir. 1992) (citing Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 108 L. Ed. 2d 400 (1990); 6A James W. Moore, Moore's Federal Practice P 57.13 (2d ed. 1992)). " 'A case becomes moot only when it is impossible for a court to grant "any effectual relief whatever" to the prevailing party.' " Saba v. Cuomo, 535 F. Supp. 3d 282, 292 (S.D.N.Y. 2021) (quoting Knox v. Serv. Emps. Int'l Union, Loc. 1000, 567 U.S. 298, 307, 132 S. Ct. 2277, 183 L. Ed. 2d 281 (2012) (quoting Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000))) (other citation omitted).
Section 2.61 generally mandated that hospitals and other healthcare facilities "shall continuously require personnel to be fully vaccinated against COVID-19, absent receipt of an exemption as allowed below." 10 N.Y.C.R.R. § 2.61(c). The only exemption provided in the regulation was a "medical exemption," which required a licensed physician, physician assistant, or certified nurse practitioner to certify that immunization with the COVID-19 vaccine would be detrimental to the health of a member of the facility's personnel, based upon a pre-existing health condition. See id. at § 2.61(d)(1). As is relevant here, at the time of the parties' briefing, DOH had recommended Section 2.61's repeal on May 24, 2023, and it indicted that it would no longer cite providers for failing to comply with the regulation going forward. See Dkt. No. 35-1. The Executive Defendants argued that, based on Section 2.61's impending repeal, Plaintiff's claims against them were moot. See Dkt. No. 40 at 7-8.
"[A]s a fundamental matter, courts may take judicial notice of legislative history." Goe v. Zucker, 43 F.4th 19, 29 (2d Cir. 2022) (citing Territory of Alaska v. Am. Can Co., 358 U.S. 224, 226-27, 79 S. Ct. 274, 3 L. Ed. 2d 257, 17 Alaska 779 (1959)). The Court takes judicial notice of the fact that, since the parties briefed this issue, New York's Department of State adopted and published DOH's call to repeal Section 2.61 in the New York State Register, thus repealing it effective October 4, 2023. See Vol. XLV, Issue 40 N.Y. Reg. 22 (Oct. 4, 2023) (available online at https://dos.ny.gov/system/files/documents/2023/10/100423.pdf, last accessed Oct. 5, 2023). In this case, Plaintiff only seeks declaratory and injunctive relief against the Executive Defendants. Thus, as a result of Section 2.61's repeal, the Court can no longer provide Plaintiff any of her requested relief. The Court therefore finds that Plaintiff's claims against the Executive Defendants are moot.
To the extent that Plaintiff maintains that the voluntary cessation doctrine precludes the Court from dismissing her claims as moot following Section 2.61's repeal, see Dkt. No. 40 at 8-9, the Court rejects such argument. "The voluntary cessation of allegedly illegal activities will usually render a case moot 'if the defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.' " Granite State Outdoor Adver., Inc. v. Town of Orange, Conn., 303 F.3d 450, 451 (2d Cir. 2002) (per curiam) (quoting Campbell v. Greisberger, 80 F.3d 703, 706 (2d Cir. 1996) (internal quotation marks omitted); see also Catanzano [v. Wing], 277 F.3d [99,] 107 (2d Cir. 2001)); accord NextG Networks of NY, Inc. v. City of New York, 513 F.3d 49, 54 (2d Cir. 2008); Wang v. Bethlehem Cent. Sch. Dist., No. 1:21-CV-1023 (LEK/DJS), 2022 WL 3154142 *8, 2022 U.S. Dist. LEXIS 140153, *20 (N.D.N.Y. Aug. 8, 2022) (Kahn, S.J.). " 'To create a reasonable expectation of recurrence, repetition must be more than theoretically possible'; '[m]ere speculation that the parties will be involved in a dispute over the same issue' is not sufficient." Mongielo v. Hochul, No. 22-CV-116-LJV, 2023 WL 2307887 *8, 2023 U.S. Dist. LEXIS 34088, *22-23 (W.D.N.Y. Mar. 1, 2023) (quoting Russman [v. Bd. of Educ.], 260 F.3d [114,] 120 [(2d Cir. 2001)] (citation omitted)) (footnote omitted). There is no doubt that Section 2.61's repeal constitutes interim relief that "irrevocably eradicated the effects of the alleged violation," thus satisfying the second prong of this traditional mootness analysis. Granite, 303 F.3d at 451 (quotations omitted).
"Consistent with the general 'capable of repetition, yet evading review' exception, the Supreme Court has 'provided the relevant legal framework for assessing mootness in COVID restriction lawsuits.' " Mongielo, 2023 WL 2307887, at *8, 2023 U.S. Dist. LEXIS 34088, at *23 (quoting Hopkins Hawley LLC v. Cuomo, 2021 U.S. Dist. LEXIS 89780, 2021 WL 1894277, at *3-4 (S.D.N.Y. May 11, 2021)). "More specifically, it has 'articulate[d] two [COVID-19-specific] mootness principles . . . : (1) a lawsuit brought against COVID restrictions is not simply moot because the restrictions at issue have been rescinded; and (2) if the COVID restrictions . . . have been rescinded in the course of litigation, the relevant inquiry is whether the plaintiff remains under a "constant threat" of those restrictions being reintroduced in the future.' " Id. (quoting [Hopkins Hawley LLC, 2021 WL 1894277, at *4, 2021 U.S. Dist. LEXIS 89780, at *9] (citing Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 141 S. Ct. 63, 68, 208 L. Ed. 2d 206 (2020); Tandon v. Newsom, 593 U.S. 61, 141 S. Ct. 1294, 1297, 209 L. Ed. 2d 355 (2021)) (other citations omitted)). The defendant bears the burden of proving that a case should be dismissed as moot, but ultimately that question "lies within the sound discretion of the district court[.]" Harrison, 981 F.2d at 59.
With respect to the first prong of the traditional mootness analysis and the COVID-specific mootness considerations, the Court notes that the Second Circuit and district courts within it have considered whether similar revocations of COVID restrictions mooted the pending cases before them. In those cases, the courts found those revocations of restrictions to have mooted the plaintiffs' claims for injunctive and declaratory relief after finding that the possibility of a similar restriction being put in place in the future because of COVID-19 or another virus was too speculative to sustain the action. See, e.g., Weisshaus v. Hochul, 2022 U.S. App. LEXIS 32794, *3-*4 (2d Cir. 2022) (summary order) (dismissing as moot the plaintiff's appeal of the district court's denial of a preliminary injunction with respect to requiring a traveler's health form related to COVID-19); Dark Storm Indus. LLC v. Hochul, 2021 U.S. App. LEXIS 29863, *2-*4 (2d Cir. 2021) (summary order) (dismissing appeal in a case in which the plaintiff sought declaratory and injunctive relief from two March 2020 COVID-19 executive orders barring it from selling firearms to civilians as moot); Mongielo, 2023 WL 2307887 at *8, 2023 U.S. Dist. LEXIS 34088, at *22-*23 (finding the plaintiff's claims for injunctive relief with respect to a rescinded mask mandate moot under both the traditional mootness analysis and the COVID-19-specific mootness framework); Doe v. Franklin Square Union Free Sch. Dist., No. 2:21-CV-5012-FB-SIL, 2023 WL 2632512, *1-2, 2023 U.S. Dist. LEXIS 50666, *4-5 (E.D.N.Y. Mar. 24, 2023) (same); Lebovits v. Cuomo, No. 1:20-cv-1284 (GLS/DJS), 2022 WL 344269 *3, 2022 U.S. Dist. LEXIS 20858, *7-9 (N.D.N.Y. Feb. 4, 2022) (Sharpe, S.J.) (dismissing the plaintiff's claims for declaratory relief with respect to the COVID-19 Cluster Action Initiative as moot because there is no reasonable expectation that schools will face a state-mandated shutdown again).
The Court finds that the same result is appropriate here. Now that Section 2.61 has been repealed, it cannot be reimposed without going through the appropriate regulatory process. Furthermore, given the current state of the pandemic and all of the evidence before the Court, Plaintiff has failed to show that, even if Section 2.61 were somehow reimplemented, she could not bring this action again for declaratory and injunctive relief against the Executive Defendants. The Court therefore finds that Plaintiff's fears of reimplementation are speculative. As such, the Court grants the Executive Defendants' motion to dismiss Plaintiff's Amended Complaint against them as moot.
C. Plaintiff's claims against SUNY Upstate
1. Whether SUNY Upstate's motion to dismiss is premature
Plaintiff argues that SUNY Upstate's motion to dismiss is premature until the Court rules on her causes of action against the Executive Defendants. See Dkt. No. 26 at 18. According to Plaintiff, this is because SUNY Upstate raises the affirmative defense that it would have suffered an undue hardship in granting Plaintiff's request to be exempted from compliance with Section 2.61 because it would have violated the law, and Plaintiff argues with respect to the Executive Defendants that Section 2.61 is invalid. See id. As discussed above, the Court finds that Plaintiff's claims against the Executive Defendants are moot. Additionally, although Section 2.61 is no longer in existence, it was valid law when SUNY Upstate terminated Plaintiff. Thus, there is no reason for the Court to conclude that SUNY Upstate's motion to dismiss is premature, nor does the Court find that it has inappropriately raised the affirmative defense that violating a valid law would have caused it an undue burden.
The New York State Appellate Division, Fourth Judicial Department, stayed the only ruling on which Plaintiff relies in arguing that Section 2.61 is unconstitutional. See Dkt. No. 33-2.
2. SUNY Upstate's reliance on exhibits not attached to the Amended Complaint
Plaintiff contends that "procedural grounds" support denying SUNY Upstate's motion to dismiss; specifically, SUNY Upstate relies on certain exhibits not attached to the Amended Complaint. See Dkt. No. 26 at 7. Plaintiff admits that some of the exhibits attached to defense counsel's declaration in connection with SUNY Upstate's motion to dismiss are referenced in her Amended Complaint. See id. However, Plaintiff argues, "issues of fact are actually created by the extraneous information that SUNY [Upstate] is requesting that this Court consider in conjunction with [its] motion to dismiss." See id. at 7-8. SUNY Upstate argues that all of the documents attached to its counsel's declaration were incorporated by reference in Plaintiff's Amended Complaint. See Dkt. No. 33 at 5-6.
"Generally, when considering dismissal pursuant to Rule 12(b)(6), the court only considers matters within the four corners of the complaint; however, it may, in addition consider matters outside the complaint if those matters consist of (1) documents attached to the complaint or answer; (2) documents incorporated by reference in the complaint, and provided by the parties; (3) documents that, although not incorporated by reference, are 'integral' to the complaint; or (4) any matter of which the court can take judicial notice for the factual background of the case." Honeywell Int'l Inc. v. Citgo Petroleum Corp., 574 F. Supp. 3d 76, 81 (N.D.N.Y. 2021) (Scullin, S.J.) (citing L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (quotations omitted)). "Moreover, even if a document is not incorporated by reference in the complaint, the court may still consider it when the complaint " 'relies heavily upon its terms and effect," thereby rendering the document "integral" to the complaint . . . . However, "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." . . . "It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document." . . .' " Id. at 81-82 (quoting DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (internal quotations omitted)).
In this case, Plaintiff attached the following documents to her Amended Complaint: (1) her letter to SUNY Upstate, dated October 3, 2021, stating that she was seeking a religious exemption from compliance with Section 2.61, see Dkt. No. 14-1; (2) an email from SUNY Upstate the next day informing her that the Review Panel denied her exemption for "fail[ing] to demonstrate that [she] ha[s] a sincerely held religious belief, practice or observance that is in conflict with the COVID-19 Vaccination requirement," see Dkt. No. 14-2; (3) Plaintiff's letter appealing that decision on October 14, 2021, which defense counsel also attached to her declaration, see Dkt. Nos. 14-3 and 21-7; and (4) an email informing Plaintiff that her "application for religious exemption was denied with the decision being made after deliberation/review" and notifying her that there was "no right to appeal" it, see Dkt. No. 14-4.
Additionally, Plaintiff's Amended Complaint directly references her job title as a Teaching and Research Center Nurse 2, which is a patient-facing position that was subject to Section 2.61. See Dkt. No. 14 at ¶¶ 18, 21, 28. The job description for a Teaching and Research Center 2 Nurse, as attached to defense counsel's declaration, is thus integral to Plaintiff's claims. See Dkt. No. 21-9. Plaintiff further alleged that she was placed on leave without pay and ultimately terminated because of her failure to get vaccinated against COVID-19. See Dkt. No. 14 at ¶¶ 42, 46. Emails that SUNY Upstate's Human Resources Department sent Plaintiff regarding her vaccination status and potential repercussions such as suspension and termination, Plaintiff's Notice of Suspension - as attached to defense counsel's declaration - and Plaintiff's Notice of Discipline - as attached to her counsel's declaration in opposition - are therefore all highly relevant and integral to the claims in her Amended Complaint. See Dkt. Nos. 21-3, 21-4, 21-5, 21-6, 27-1. Notably, Plaintiff does not challenge the relevance, authenticity, or accuracy of these documents. The Court therefore finds that these documents are admissible, as they appear in the attachments discussed above, for purposes of deciding SUNY Upstate's motion to dismiss. See Kotruch v. Thor Motor Coach, No. 5:22-CV-1343 (FJS/ML), 686 F.Supp. 167, 175 n.5, 2023 U.S. Dist. LEXIS 162165, *9 n.5 (N.D.N.Y. Aug. 14, 2023) (Scullin, S.J.).
Lastly, the Court may take judicial notice of an arbitrator's decision in a prior proceeding but may do so " 'only to establish the existence of the opinion, not for the truth of the facts asserted in the opinion.' " Henneberger v. Cnty. of Nassau, 465 F. Supp. 2d 176, 185 (E.D.N.Y. 2006) (quoting Global Network Commc'ns, Inc. v. City of N.Y., 458 F.3d 150, 157 (2d Cir. 2006) (internal and other citations omitted)). As such, the Court considers the arbitration decision between Plaintiff and SUNY Upstate with respect to this issue to establish the existence of such arbitration and its outcome in SUNY Upstate's favor, which SUNY Upstate attached to defense counsel's declaration. See Dkt. No. 21-8.
3. Plaintiff's first cause of action against SUNY Upstate
The McDonnell Douglas burden-shifting framework governs Plaintiff's first cause of action for religious discrimination based on disparate treatment. See Adams v. N.Y. State Unified Ct. Sys., No. 22-CV-9739 (JMF), 2023 WL 5003593 *3, 2023 U.S. Dist. LEXIS 138218 (S.D.N.Y. Aug. 4, 2023) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Mussallihattillah v. McGinnis, 684 F. App'x 43, 47 (2d Cir. 2017) (summary order)). Under that standard, a plaintiff must allege the following: "[1] she was within the protected class; (2) she was qualified for the position; (3) she was subject to an adverse employment action; and (4) 'the adverse action occurred under circumstances giving rise to an inference of discrimination.' " Id. at *3, 2023 U.S. LEXIS 138218, at *8-*9 (quoting Menaker v. Hofstra Univ., 935 F.3d 20, 30 (2d Cir. 2019) (cleaned up)). "If she does so, 'the burden then shifts to the employer to articulate a legitimate, non-discriminatory . . . reason for the adverse action.' " Id. at *3, 2023 U.S. LEXIS 138218, at *9 (quoting Demuth v. United States SBA, 819 Fed. Appx. 23, 25 (2d Cir. 2020) (summary order)). " 'If the employer satisfies its burden, the plaintiff must then show that the reasons presented were a pretext for discrimination . . . .' " Id. (quoting [Demuth, 819 F. App'x at 25] (internal quotation marks omitted)). At the motion to dismiss phase of litigation, the plaintiff "need 'only give plausible support to a minimal inference of discriminatory motivation'; she need not plausibly allege that 'the adverse employment action was attributable to discrimination.' " Id. (quoting Littlejohn [v. City of New York], 795 F.3d [297,] 311 [(2d Cir. 2015)]). The parties do not dispute that Plaintiff has adequately alleged that, as a Muslim, she was within a protected class and that she was subject to an adverse employment action when SUNY Upstate terminated her employment in June of 2022. Thus, the two elements in dispute are whether Plaintiff was qualified for her position and whether she has plausibly alleged an inference of discriminatory motivation.
Although Plaintiff identifies her first cause of action as one for "wrongful termination," it appears that, in her memorandum of law, she opposes SUNY Upstate's motion by relying on law and facts showing that she suffered a disparate impact. Nonetheless, to establish a prima facie case of wrongful termination, the same McDonnell Douglas framework applies. Chukwueze v. N.Y.C. Emps.' Ret. Sys., No. 10-CV-8133 (JMF), 2014 WL 3702577 *4, 2014 U.S. Dist. LEXIS 101908 (S.D.N.Y. July 25, 2014). Under that framework, Plaintiff "must point to admissible evidence showing that [s]he '(1) is a member of a protected class; (2) was performing [her] duties satisfactorily; (3) was discharged' and that (4) [her] discharge occurred under circumstances giving rise to an inference of discrimination on the basis of [her] membership in the protected class.' " Id. (quoting Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000)). Thus, for the reasons discussed below in the Court's disparate treatment analysis, it finds that Plaintiff has not alleged facts sufficient to show a plausible inference of discrimination; and, accordingly, she has not set forth a prima facie case on a wrongful termination claim.
With respect to Plaintiff's qualifications, she alleges in her Amended Complaint that she held the position of Teaching and Research Center Nurse 2 at SUNY Upstate and treated patients in that position. See Dkt. No. 14 at ¶ 18. Plaintiff contends that discovery is necessary to determine whether she was qualified for that position. See Dkt. No. 26 at 10. SUNY Upstate, to the contrary, argues that Plaintiff was not qualified for her position, by law, after DOH enacted Section 2.61 because she admits that she was a covered employee, she was not vaccinated, and she did not seek a medical exemption. See Dkt. No. 33 at 7-8. The job description for Teaching and Research Center Nurse 2 that SUNY Upstate attached to its motion to dismiss lists the minimum qualifications as the following: "RN licensure as outlined by NYS Education Department. One year post-licensure clinical nursing experience in acute care. Meets NYS Civil Service requirements. Current CPR certification." See Dkt. No. 21-9 at 1. That job description was updated September 3, 2020. See id. As Plaintiff admits in her Amended Complaint, DOH implemented Section 2.61 on August 18, 2021, which mandated patient-facing healthcare workers at all covered facilities, including SUNY Upstate, to receive one of the available COVID-19 vaccines unless they received a medical or religious exemption. See Dkt. No. 14 at ¶ 21. Plaintiff further admits in her Amended Complaint that, effective from November 24, 2021, DOH modified Section 2.61 to exclude any religious exemptions for individuals who work in healthcare facilities in New York State who interact with patients. See id. at ¶ 28. Plaintiff even concedes in her Amended Complaint and in her memorandum of law in opposition to SUNY Upstate's motion that Section 2.61 became a "condition of [her] employment with SUNY [Upstate]." See Dkt. No. 26 at 15 (citing Dkt. No. 14 at ¶¶ 54, 60). Thus, even when accepting Plaintiff's allegations as true as the Court must at this phase of the litigation, the Court finds that Section 2.61 ultimately changed Plaintiff's job requirements to include that she must be vaccinated with one of the COVID-19 vaccines unless she received an authorized exemption.
SUNY Upstate itself informed Plaintiff that she could request a religious or medical exemption from Section 2.61's initial application by submitting that request until September 20, 2021. See Dkt. No. 21-3 at 1. It is undisputed that Plaintiff did not make such request until October 3, 2021, and the Review Panel denied it. See Dkt. Nos. 14-1, 14-2. Even if the Review Panel had granted her a religious exemption, such exemption would not have survived following DOH's modification to Section 2.61 that went into effect November 24, 2021, about which SUNY Upstate cautioned its employees in its initial email. See Dkt. No. 14 at ¶ 28; Dkt. No. 21-3; see also 10 N.Y.C.R.R. § 2.61; We the Patriots USA, Inc. v. Hochul, 17 F.4th 368, 370 (2d Cir. 2021) (amending its November 4, 2021 decision and clarifying that employers may accommodate but may not exempt employees with religious objections from complying with Section 2.61). At that point, to be qualified for her position as a Teaching and Research Center Nurse 2, Plaintiff must have been vaccinated against COVID-19 or received a medical exemption; it is undisputed that she did neither. Furthermore, in addressing healthcare workers' religious objections to Section 2.61's requirement that they receive the COVID-19 vaccine, the Second Circuit plainly stated the following: "Although individuals who object to receiving the vaccines on religious grounds have a hard choice to make, they do have a choice. Vaccination is a condition of employment in the healthcare field; the State is not forcibly vaccinating healthcare workers." We the Patriots USA, Inc. v. Hochul, 17 F.4th 266, 293-94 (2d Cir. 2021). Based on the foregoing, the Court finds that Section 2.61 created a mandatory qualification after November 24, 2021, in that Plaintiff either must have been vaccinated against COVID-19 or received a medical exemption. Such mandatory qualification continued until at least May of 2023. Since Plaintiff admittedly did not receive the vaccine nor obtain a medical exemption, the Court finds that she has not alleged that she was qualified for her position when she was terminated in June of 2022. The Court therefore dismisses her first cause of action pursuant to Title VII against SUNY Upstate because she has not alleged a prima facie case of religious discrimination.
Notwithstanding this finding, the Court further concludes that dismissing Plaintiff's first cause of action against SUNY Upstate is appropriate because she has failed to allege circumstances surrounding her termination that give rise to an inference of discrimination. With respect to this element, Plaintiff points to her allegations in her Amended Complaint that she requested a "reasonable accommodation" to be exempted from compliance with Section 2.61, the Review Panel denied that request and her subsequent appeal, the Review Panel approved requests for religious exemptions for Plaintiff's co-workers who "had interaction with patients prior to the modification of § 2.61 effective November 24, 2021[,]" and the Review Panel approved her coworkers' requests for medical exemptions and continues to do so to this day. See Dkt. No. 26 at 10 (citing Dkt. No. 14 at ¶¶ 32-42). Plaintiff also points to her allegations in her second cause of action, further discussed in the Court's analysis of that claim, that the Review Panel refused to explore reasonable alternatives to allow Plaintiff to do her job and never demonstrated that a reasonable accommodation posed an undue hardship on SUNY Upstate's operations. See id. (citing Dkt. No. 14 at ¶¶ 66-72). In response, SUNY Upstate contends that Title VII cannot be used to require employers to break the law, which would be an undue hardship, and Plaintiff's "broad and conclusory descriptions of the existence of similarly situated comparators fails to raise an inference of discrimination in this case." See Dkt. No. 33 at 8, 11.
" 'A showing of disparate treatment - that is, a showing that an employer treated [a] plaintiff "less favorably than a similarly situated employee outside his protected group" - is a recognized method of raising an inference of discrimination for the purposes of making out a prima facie case.' " Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010) (quoting Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)). "An employee is similarly situated to co-employees if they were (1) 'subject to the same performance evaluation and discipline standards' and (2) 'engaged in comparable conduct.' " Id. at 493-94 (quoting Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000)). With respect to her first cause of action, Plaintiff's allegation that she received disparate treatment compared to similarly situated employees reads in its entirety: "The GOVERNMENT REVIEW PANEL approved other requests for a reasonable accommodation to be exempted from compliance with § 2.61 submitted by co-workers of Plaintiff at [SUNY] UPSTATE who, like Plaintiff, had interaction with patients prior to the modification of § 2.61 effective November 24, 2021[,] which excluded religious exemptions." See Dkt. No. 14 at ¶ 37.
Plaintiff does not identify those employees by name, position or job title, or any other material respects with which she claims she is similar to them. Critically, although Plaintiff alleges that the Review Panel provided those co-workers reasonable accommodations in the form of a religious exemption, she does not allege that those employees held similar or less sincerely held religious beliefs than she did with respect to the COVID-19 vaccine. In Plaintiff's October 3, 2021 request for a religious exemption from Section 2.61, attached to her Amended Complaint, she asserted that, as a practicing Muslim, she invoked her "exemption from activities designed to alter [her] God-given immune system and cause bodily harm, such as being forced to take the Covid-19 vaccine, as they conflict with [her] sincerely held belief." See Dkt. No. 14-1 at 1. Plaintiff asserted that her belief "protect[ed]" her from forcibly taking any substance, whether "food, drink, or medicine, even for treatment." See id. The Review Panel denied Plaintiff's request, finding that she "failed to demonstrate that [she had] a sincerely held religious belief, practice or observance that is in conflict with the COVID-19 Vaccination requirement." See Dkt. No. 14-2. Plaintiff has not alleged that these unknown co-workers who were granted religious exemptions held comparable sincerely held religious beliefs, yet the Review Panel denied her request.
Furthermore, as is evidenced in the emails SUNY Upstate attached to its motion, it notified employees that they must submit a request for a religious accommodation prior to a September 20, 2021 deadline, and must have received their first dose of the COVID-19 vaccine if non-exempt by September 27, 2021. See Dkt. No. 21-3. Because Plaintiff indisputably did not submit her request for a religious exemption before September 20, 2021, and she did not receive the COVID-19 vaccine by September 27, 2021, the Court finds that there can be no inference of religious discrimination in that SUNY Upstate suspended her without pay on September 28, 2021. Additionally, as DOH modified Section 2.61 such that it excluded religious exemptions, and that regulation was enforced until May 24, 2023, and valid through October 4, 2023, the Court finds that Plaintiff cannot plausibly allege an inference of religious discrimination in that SUNY Upstate terminated her in June of 2022 for her refusal to get the COVID-19 vaccine. To permit Plaintiff to continue working in her Teaching and Research Center Nurse 2 position without vaccination or medical exemption would cause SUNY Upstate to violate the law as codified in Section 2.61. Title VII's protections for an employee cannot require employers to violate the law. See Bey v. City of New York, 999 F.3d 157, 170 (2d Cir. 2021) (concluding "that Title VII cannot be used to require employers to depart from binding federal regulations"). As such, the Court finds that Plaintiff has not plausibly alleged circumstances giving rise to an inference of religious discrimination to state a prima facie claim for relief pursuant to Title VII. The Court therefore grants SUNY Upstate's motion to dismiss Plaintiff's first cause of action against it.
4. Plaintiff's second cause of action against SUNY Upstate
Plaintiff's second cause of action alleges that SUNY Upstate failed to engage in a meaningful dialogue with her and failed to provide her with reasonable accommodations. See Dkt. No. 14 at ¶¶ 60-73. "To make out a prima facie case for religious discrimination based on [a defendant's] failure to accommodate, [a plaintiff] must allege that '(1) [she] held a bona fide religious belief conflicting with an employment requirement; (2) [she] informed [her] employers of this belief; and (3) [she was] disciplined for failure to comply with the conflicting employment requirement.' " Adams, 2023 WL 5003593, at *2, 2023 U.S. Dist. LEXIS 138218, at *6-*7 (quoting Baker v. The Home Depot, 445 F.3d 541, 546 (2d Cir. 2006) (internal quotation marks omitted)). "To avoid Title VII liability for religious discrimination, an employer 'need not offer the accommodation the employee prefers.' " We the Patriots USA, 17 F.4th at 292 (quoting Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir. 2002)). As an example, the Second Circuit noted that Title VII does not require employers to provide "a blanket religious exemption allowing [the plaintiffs] to continue working at their current positions unvaccinated." Id. "Instead, an employer must offer a reasonable accommodation that does not cause the employer an undue hardship." Id. "Under Title VII, an accommodation causes undue hardship where it 'results in "more than a de minimis cost" to the employer.' " Corrales v. Montefiore Med. Ctr., No. 22-CV-3219 (LAP), 2023 WL 2711415 *5, 2023 U.S. Dist. LEXIS 55620 (S.D.N.Y. Mar. 30, 2023) (quoting Ansonia [[Bd. of Educ. v. Philbrook], 479 U.S. [60,] 67, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986)] (quoting [TWA v.] Hardison, 432 U.S. [63,] 84 [97 S.Ct. 2264, 53 L.Ed.2d 113 (1977)])). The Second Circuit "has provided that dismissal of an employee's Title VII claim because of undue hardship is appropriate where, in granting the employee's accommodation request, the employer would be required to violate state or federal law." Id. at *7, 2023 U.S. Dist. LEXIS 55620 at *18 (citing Lowman v. NVI LLC, 821 F. App'x 29, 32 (2d Cir. 2020) [(summary order)]; see also Bey v. City of New York, 999 F.3d 157, 170 (2d Cir. 2021)) (parentheticals omitted).
Plaintiff attached to her Amended Complaint her letter to SUNY Upstate identifying her sincerely held religious belief that conflicted with the COVID-19 vaccine requirement set forth in Section 2.61. See Dkt. No. 14-1. The Court finds that, through this letter, Plaintiff has plausibly satisfied the first two elements of her Title VII failure to accommodate claim. There is also no dispute that Plaintiff was terminated in June of 2022 for failing to comply with Section 2.61. See Dkt. No. 14 at ¶ 46. The Court therefore finds that Plaintiff has plausibly stated her prima facie case for religious discrimination on the basis of a failure to accommodate pursuant to Title VII.
Nonetheless, for the reasons discussed above, the Court holds that Plaintiff's requested accommodation would have caused an undue hardship for SUNY Upstate. The only accommodation which Plaintiff alleges she requested was to continue to perform her patient-facing duties, unvaccinated, which would violate Section 2.61. As stated above, a reasonable Title VII accommodation cannot require an employer to violate state or federal law, including Section 2.61. Furthermore, although Plaintiff could have asked to perform her job duties in a way that would not have made her covered "personnel" under Section 2.61, it is undisputed that Plaintiff did not ask for such an accommodation. In any event, SUNY Upstate contends that it could not have accommodated her in that way. See Dkt. No. 33 at 14 n.2. Thus, because Plaintiff has alleged that she only requested an accommodation that would cause SUNY Upstate an undue burden, the Court finds that she has failed to state a claim under Title VII for racial discrimination based on a failure to accommodate.
5. Plaintiff's argument that SUNY Upstate has violated the Supremacy Clause
Lastly, Plaintiff contends in her memorandum of law in opposition to SUNY Upstate's motion to dismiss that federal law, in the form of the CMS Mandate, required it to accept religious exemptions in connection with Section 2.61. See Dkt. No. 26 at 18-20 (citing 86 Fed. Reg. at 61572-74). However, as SUNY Upstate notes in its response, Plaintiff did not allege in her Amended Complaint that SUNY Upstate violated the Supremacy Clause of the United States Constitution. See generally Dkt. No. 14; U.S. Const. art. VI. cl. 2. Instead, she sought injunctive and declaratory relief against the Executive Defendants pursuant to 42 U.S.C. § 1983 based on their violations of the Supremacy Clause, which the Court dismissed, above, as moot. See Dkt. No. 14 at ¶¶ 137-149. A plaintiff may not add a defendant or amend a cause of action in its memorandum of law in response to the defendants' motions to dismiss, as Plaintiff attempts to do here. See Budhani v. Monster Energy Co., No. 20-cv-1409 (LJL), 2021 WL 5761902 *2 n.1, 2021 U.S. Dist. LEXIS 232021, *3 n.1 (S.D.N.Y. Dec. 3, 2021) (noting that " '[i]t is long-standing precedent in this circuit that parties cannot amend their pleadings [through] their briefs.' " Fadem v. Ford Motor Co., 352 F. Supp. 2d 501, 516 (S.D.N.Y. 2005); see also Friedman v. Village of Skokie, 763 F.2d 236, 239 (7th Cir. 1985) (parenthetical omitted)); accord Searle v. Red Creek Cent. Sch. Dist., No. 21-CV-6086-FPG, 2022 WL 3566685 *4, 2022 U.S. Dist. LEXIS 148420, *11 (W.D.N.Y. Aug. 18, 2022). Since Plaintiff did not allege a cause of action against SUNY Upstate for violations of the Supremacy Clause in her Amended Complaint, she cannot assert them in her responsive memorandum of law now. The Court therefore rejects Plaintiff's contention on this basis.
III. CONCLUSION
After carefully considering the entire file in this matter, the parties' submissions, and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that the Executive Defendants' motion to dismiss Plaintiff's Amended Complaint against them, see Dkt. No. 39, is GRANTED, as Plaintiff's claims are moot; and the Court further
ORDERS that SUNY Upstate's motion to dismiss Plaintiff's Amended Complaint against it, see Dkt. No. 21, is GRANTED in its entirety; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this case.