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Employees fired by the City of New York and the New York City (NYC) Department of Education (DOE) for refusing the COVID-19 vaccine will learn on Sept. 6 — the day before classes start in the city’s public schools — if their lawsuit will be certified as a class action case.
State Supreme Court Judge Ralph J. Porzio today heard arguments from both sides in the case of DiCapua v. City of New York, filed in February by Teachers For Choice and other fired NYC DOE employees. Children’s Health Defense (CHD) and CHD-New York are supporting the suit.
Nearly 300 people gathered outside the courthouse today to support the plaintiffs who in April filed a motion for class certification, citing that all members of the class were affected by the same errors of law and that “the autogenerated, vague, and conclusory denials” of religious exemptions were all “arbitrary and capricious.”
The plaintiffs argued that the city never fairly evaluated individualized cases, and instead issued an autogenerated denial of religious exemptions for almost every employee.
In addition to deciding whether to certify the class, Judge Porzio will render a decision on the question of Article 78 — whether to overturn the DOE’s determination on the religious exemptions and offer relief to the plaintiffs.
If the plaintiffs win class status and win relief, all members of the class would be reinstated, Sujata Gibson, plaintiffs’ attorney, previously told The Defender.
“All of their denials would be vacated as if they never happened, and they’d be reinstated with full seniority and no break in service and back pay and attorney’s fees,” Gibson said.
CHD President Mary Holland, who attended today’s oral arguments, told The Defender:
“This is an important case. The 2nd Circuit Court of Appeals has already stated that the Department of Education religious exemption panels were unconstitutional.
“The City acted in a disgraceful way towards their own employees. These petitioners richly deserve what they have demanded: reinstatement, back pay, compensation for pain and suffering, and attorneys’ fees.
“The petitioners have waited more than two years for justice to be done — we eagerly await Judge Porzio’s September 6 decision.”
Gibson today told The Defender, “The law is very clearly on our side. At this point, I think we are all just gonna have to pray that the court renders long overdue justice.”
DiCapua v. City of New York alleges that defendants New York City and the DOE denied reasonable religious accommodation to workers under discriminatory policies when implementing the COVID-19 vaccine mandate.
In doing so, the defendants engaged in a continuing pattern of widespread discrimination against the DOE workers, in violation of the New York State Constitution, the New York State Human Rights Law, the New York City Human Rights Law and Article 78 of the New York Civil Practice Law and Rules.
The plaintiffs seek to have jobs reinstated, back pay and benefits, seniority and pension credits restored for themselves and for all DOE employees affected by the discriminatory policies, which would make this a class action lawsuit.
Judge Porzio last month denied the defendants’ motion to dismiss the lawsuit.
‘A sign’ that things are ‘going to go well for us’
Plaintiff Michael Kane told The Defender the judge was impressed with the number of people who came out today to hear the case.
“The judge worked for 20 minutes to get an extra 20 people into the courtroom,” Kane said, by having security move seats around and moving some petitioners into the jury box.
Kane said was optimistic about the outcome and that he thought the timing of the announcement was “a sign that things are gonna go well for us.”
“We can prove our case for why the city should be liable not only for back pay but also for costs,” Gibson told The Defender in July.
Gibson said many members of the class had suffered “enormous collateral damage,” losing homes, health and careers and suffering social ostracization.
In Kane v. de Blasio, a case brought by many of the same plaintiffs and also represented by Gibson and supported by CHD in federal court, the 2nd Circuit U.S. Court of Appeals already held that DOE’s religious accommodation policies were unconstitutional.
While resolution of the constitutional claims is pending in the appellate courts, the plaintiffs were authorized to bring their statutory claims and seek certification as a class in New York State court after the district court declined to exercise jurisdiction over their state claims.
‘The facts are appalling’
The plaintiffs filed a brief on April 7 in support of their Article 78 claim and outlining the near-blanket denial of religious exemptions by DOE. “The facts,” it reads, “are appalling.”
In August 2021, New York City Mayor Bill De Blasio announced a COVID-19 vaccine mandate for DOE employees for the upcoming school year.
NYC initially indicated it would not consider religious exemptions, despite its legal obligation to do so. After a local court issued a temporary restraining order against the mandate, the city agreed to adopt an accommodation policy.
The accommodation policy, however, was “facially discriminatory,” according to Gibson, because it was explicit that religious accommodation requests must be denied to anyone who is not a member of a “recognized” and “established” religious organization whose leader is against vaccination, such as Christian Scientists.
DOE then used that policy as a basis to deny religious exemptions to Christians, Jews, Buddhists and others, saying that although they believed that people’s religious objections were sincere, those beliefs did not meet the criteria for exemption.
It initially denied the exemption requests of all 7,000 petitioners using the same autogenerated email.
“The DOE then participated in what can only be described as heresy inquisitions to ensure that arbitrators upheld as many denials as possible on appeal,” according to the brief.
It ultimately granted only 162 out of approximately 7,000 requests.
The remaining employees who were not vaccinated were involuntarily suspended without pay and ultimately terminated, with “problem” codes attached to their permanent employee records and hurdles to getting employment anywhere, not just at the DOE.
By December 2021, the 2nd Circuit had already found — in a separate federal case on the matter, Kane v. de Blasio — that the religious accommodation as it was written is unconstitutional and that it is illegal to deny a person religious accommodation “based on someone else’s publicly expressed religious views — even the leader of her faith.”
The city promised to convene a “Citywide Panel” to provide a “fresh review” of the exemption requests and to reinstate wrongfully terminated employees with back pay.
But it refused to even review over 6,000 of the petitions and of the 600 it did review, the panel almost universally upheld the original decision and issued a generic denial email to the petitioners stating that their petition “does not meet criteria.”
The mandate continued to be maintained by current Mayor Eric Adams, until Feb. 10, 2023, two days before CHD argued Kane v. de Blasio in the 2nd Circuit, challenging the mandate.
The defendants now claim that because the mandate is no longer in place, the original lawsuit is “moot,” or no longer relevant.
However, those city workers who were fired as a result of not receiving the COVID-19 vaccine were not automatically reinstated. Instead, they’ve been told they can reapply for employment with the city.
Gibson told The Defender the withdrawal of the city’s vaccine mandate makes no difference for those teachers and DOE employees who were fired due to their unvaccinated status, and so the case is not moot.
“It doesn’t change anything,” she said. “New York City’s discriminatory policies ruined a lot of lives and they need to make amends and understand that this cannot happen again.”
A case is not moot, Gibson also wrote in an Aug. 12 response memo to the Supreme Court, when the plaintiffs have suffered damages.
Kane highlighted the damages members of the class have suffered in a press release.
He said:
“This illegal mandate has destroyed the lives of hard-working educators who cared about their students, but ultimately NYC hardly cared about that. Justice for those whose lives were upended, negatively affecting countless family members in the process, is long overdue.”
