Women of Color for Equal Justice et al v. The City of New York

Filing 99

MEMORANDUM & ORDER: With the exception of plaintiff Amoura Bryan's Title VII and NYCHRL claims against the City and the Department of Education, plaintiffs' claims are dismissed. Plaintiffs' fraud claim is dismissed without prej udice. See Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 116 (2d Cir. 2017) (dismissal for lack of subject matter jurisdiction must be without prejudice). All other claims are dismissed with prejudice. See, e.g., Liang v. Home Reno Concept s, LLC, 803 F. App'x 444, 448 (2d Cir. 2020) (denying leave to amend was proper where plaintiff already had "three bites at the apple" and was still unable to state a claim); Foman v. Davis,, 371 U.S. 178, 182 (1962) (courts may deny leave to amend based on "futility of amendment"); Wallace v. Conroy, 945 F. Supp. 628, 639 (S.D.N.Y. 1996) (collecting cases). Finally, plaintiffs' motion for sanctions and motion to vacate the denial of preliminar y injunctive relief are denied. ECF Nos. 64, 74. The motion to strike the Fourth Amended Complaint and all other pending motions related to the Fourth Amended Complaint and the motion to dismiss are denied as moot. ECF Nos. 75, 82, 83, 87, 96, 98. A status conference on the remaining claims shall be held at 10:30 A.M. on November 7, 2024 in Courtroom 6G North. (ORDER ATTACHED) So Ordered by Judge Eric R. Komitee on 9/25/2024. (APJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
Sara Coombs-Moreno, et al.,
MEMORANDUM & ORDER
22-CV-02234(EK)(LB)

Plaintiffs,
-againstThe City of New York, et al.,
Defendants. 1
------------------------------------x
ERIC KOMITEE, United States District Judge:

The plaintiffs in this case are current and former
employees of several New York City agencies.

During the COVID-

19 pandemic, they refused (for religious, medical, or
philosophical reasons) to be vaccinated.

Many (but not all) of

them suffered employment-related consequences as a result.

They

brought this action in response, arguing that the City’s vaccine
mandate violated various federal constitutional and statutory
provisions.
The defendants have moved to dismiss plaintiffs’
claims pursuant to Federal Rule of Civil Procedure 12(b)(6). 2
For the following reasons, that motion is granted, except with

1 The Clerk of the Court is respectfully directed to amend the caption
as set out here.
2 Defendants are the City of New York, Mayor Eric Adams, the New York
City Department of Health and Mental Hygiene, Dr. Ashwin Vasan in his
capacity as Commissioner of the Department of Health and Mental Hygiene, the
New York City Department of Education, and Does 1-20.

respect to plaintiff Amoura Bryan’s Title VII and New York City
Human Rights Law claims against New York City and the Department
of Education. 3
Background
The following facts are taken from the Fourth Amended
Complaint and certain court documents of which the Court may
take judicial notice.

ECF No. 88; see Kramer v. Time Warner

Inc., 937 F.2d 767, 774 (2d Cir. 1991).

Plaintiffs cite over

1300 pages of exhibits attached to the FAC, including a number
of affidavits from plaintiffs and putative experts and reams of
OSHA regulations.

At the motion to dismiss stage, the Court

need not wade through materials that are not “written
instruments” under Federal Rule of Civil Procedure 10(c).

See

Smith v. Hogan, 794 F.3d 249, 254-55 (2d Cir 2015); 4 see also
Jackson v. Nassau Cnty., 552 F. Supp. 3d 350, 367 (E.D.N.Y.

The municipal defendants are the City of New York, the New York City
Department of Health and Mental Hygiene, and the New York City Department of
Education. The Department of Health and Mental Hygiene is suable. See N.Y. Educ.
3

Law § 2551; N.Y.C. Charter Ch. 22, § 564 (“The department may sue and be sued in and
by the proper name of ‘Department of Health and Mental Hygiene of the City of New
York.’”). The Second Circuit has noted that whether the DOE is a non-suable agency of
the City is “unclear.” Broecker v. New York City Dep't of Educ., No. 23-655, 2023 WL
8888588, at *1 n.2 (2d Cir. Dec. 26, 2023). However, for the reasons set out in
Brainbuilders LLC v. EmblemHealth, Inc., No. 21-CV-4627, 2022 WL 3156179, at *13
(S.D.N.Y. Aug. 8, 2022), the Court concludes that the Department of Education is a
suable entity.

In Smith, the Second Circuit held that the plaintiff’s affidavit was
not a written instrument “or otherwise properly considered to be part of the
complaint,” per Rule 10(c). Id. The panel reasoned that “treating the
affidavit as part of the complaint would do considerable damage to Rule
8(a)’s notice requirement” — indeed, the “requirement of a short and plain
statement of a claim for which relief could be granted would be eviscerated.”
Id.
4

2

2021) (declining to consider 56 exhibits attached to plaintiff’s
Second Amended Complaint when deciding a motion to dismiss).
Between August and December 2021, in response to the
COVID-19 pandemic, the New York City Commissioner of Health and
Mental Hygiene issued nine orders requiring certain individuals
to be vaccinated against COVID-19.

ECF Nos. 17-19 to 17-27.

These included employees and contractors of the City Department
of Education, along with certain other City employees and
contractors, childcare workers, nonpublic school staff, and
employees of private businesses.

Id.

All vaccine orders have

since been lifted. 5
Not all plaintiffs complain of the same harms.

Some

allege that after they refused to be vaccinated, they were
placed on leave without pay and have been “locked out of their
jobs” since September 2021. 6
No. 88.

Fourth Am. Compl. (FAC) ¶ 11, ECF

Other plaintiffs remain gainfully employed; they allege

that they originally refused the COVID-19 vaccine but were
“coerced” into vaccination by the threat of leave without pay.
See, e.g., id. ¶¶ 11, 19, 37-38, 88.

Plaintiffs also allege

that some (unnamed) individuals were harmed by the City’s
See Order of the Board of Health to Amend the Requirement for COVID-19
Vaccination for City Employees and Employees of Certain City Contractors
(Feb. 9, 2023); Order of the Board of Health Amending COVID-19 Vaccination
Requirements for Department of Education Employees, Contractors, Visitors and
Others (Feb. 9, 2023).
6 Based on plaintiffs’ allegations, the continued lock-out appears to be
involuntary. See FAC ¶ 11.
5

3

alleged misrepresentations regarding the effectiveness of the
vaccines.

Id. ¶ 11(c).

No individual plaintiff expressly

alleges membership in this latter group.
The complaint invokes the “biblical practice of plantbased lifestyle medicine” and other unspecified religious,
medical, and philosophical beliefs as the root of Plaintiffs’
objection to receiving the COVID-19 vaccination.
¶¶ 16-18, 20-36, 138-42.

See, e.g., id.

Only one plaintiff alleges a more

specific description of her religious beliefs.

Amoura Bryan

exercised her right to refuse the Covid-19 vaccine so
that she could practice her religious Biblical medical
practice of Plant-Based Lifestyle Medicine, which
includes consuming a 100% plant-based diet according
to the Bible instruction in Genesis 1:29 along with
practicing the nine (9) lifestyle interventions also
prescribed by the Bible, namely exercise, water,
outdoor fresh air, cleanliness or hygiene to name a
few.
Id. ¶ 138.

The complaint provides no specifics concerning other

plaintiffs’ religious or philosophical objections.
Plaintiffs allege that the vaccine mandate violated
their federal constitutional and statutory rights, as well as
New York state law.

FAC ¶ 1.

They bring claims under (1) the

Occupational Safety and Health Act of 1970, 29 U.S.C. §
660(11)(c); (2) the First Amendment’s Free Exercise Clause and
the Fourteenth Amendment’s guaranty of substantive due process;
(3) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq.; (4) the New York City Human Rights Law,
4

Administrative code § 8-107(3), § 8-109(a)(f)(i); and (5) New
York’s common law of fraud.

They seek declaratory and

injunctive relief, as well as monetary damages.

FAC ¶ 1.

On September 6, 2022, I denied plaintiffs’ motion for
a temporary restraining order because they had not established a
sufficient likelihood of success on the merits.

See Mot. for

TRO & PI, ECF No. 17; Dkt. Order, Sept. 6, 2022.

I denied a

related application for injunctive relief on September 14, 2022.
See Mot. for Reconsideration of TRO, ECF No. 20; Dkt. Order,
Sept. 14, 2022.

Following this denial, plaintiffs filed a Third

Amended Complaint on September 15, 2022.
ECF No. 22.

See Third Am. Compl.,

Based on that new complaint, plaintiffs again filed

for emergency relief on October 26, 2022, and moved to
supplement their request for relief on November 16, 2022.

Mot.

for TRO, PI, & Conditional Class Certification, ECF No. 33; Mot.
to Amend/Correct/Supplement, ECF No. 38.

Again, I found that

plaintiffs were unlikely to succeed on the merits of their
claims.

See e.g., Mem. & Order, ECF No. 37; Mem. & Order, ECF

No. 39.
Defendants initiated the instant Motion to Dismiss in
2023.

See Mot. to Dismiss, ECF No. 47.

Plaintiffs’ several

submissions thereafter, together with the failure to follow the
Court’s rules, elongated the briefing process.
for Summary Judgment, ECF No. 57; Mot. to
5

See e.g., Mot.

Amend/Correct/Supplement Fourth Am. Compl., ECF No. 63; Mot. for
Sanctions, ECF No. 64; Dkt. Order, Apr. 4, 2023.
On January 10, 2024, I granted plaintiffs leave to
amend their complaint once again.

Dkt. Order, Jan. 10, 2024.

Plaintiffs filed their Fourth Amended Complaint on January 22,
2024 – the operative complaint here.

See FAC.

Consistent with

my January 10, 2024 Order, defendants renewed their Motion to
Dismiss on February 1, 2024.

See Renewed Mot. to Dismiss, ECF

No. 90; see also Opp’n to Renewed Mot. to Dismiss, ECF No. 91;
Reply Supp. Renewed Mot. to Dismiss, ECF No. 95.
The Court acknowledges the following deficiencies in
the Fourth Amended Complaint, as well as the inability of
certain plaintiffs to bring suit.

However, the Court need not

wade into these deficiencies in greater detail due to the
complete dismissal of the action, save for two claims brought by
one plaintiff.
First, this case was initially brought by an
association called “Women of Color for Equal Justice.”

That

organization was dropped from the Fourth Amended Complaint after
questions of standing emerged.

Of the plaintiffs who remain,

thirty-five assert no specific facts in support of their claims.
Renewed Mot. to Dismiss at 2-3.

Several plaintiffs are listed

on ECF in the caption but not referenced in the body of the
Fourth Amended Complaint at all, or vice-versa.
6

Id at 2.

Second, the plaintiffs bring claims against the
“Department of Children’s Services,” though no City agency bears
that name.

Id.

This is presumably a reference to the

Administration for Children’s Services; that entity is not,
however, subject to suit under the New York City charter.

E.g.,

Thomas v. Admin. for Children’s Servs., No. 21-CV-0047, 2021 WL
493425, at *2 (E.D.N.Y. Feb. 10, 2021).
Third, at least some plaintiffs in this case are or
were also plaintiffs in other actions regarding the vaccine
mandate, giving rise to the specter of claim-splitting.

See Am.

Stock Exch., LLC v. Mopex, Inc., 215 F.R.D. 87, 91 (S.D.N.Y.
2002) (“It is well established, under the doctrine of ‘claim
splitting,’ that a party cannot avoid the effects of res
judicata by splitting her cause of action into separate grounds
of recovery and then raising the separate grounds in successive
lawsuits.”); Mem. in Supp. Mot. to Dismiss at 6-7, ECF No. 48.
Lastly, three plaintiffs — Curtis Boyce, Ayse Ustares,
and Sarah Wiesel — waived their claims against the Department of
Education in exchange for health benefits through September 6,
2022.

See Renewed Mot. to Dismiss, Ex. A; Ex. B; Ex. C, ECF

Nos. 90-1, 90-2, 90-3.

The New York County Supreme Court

recently upheld and enforced an identical waiver to those
executed by these plaintiffs.

See Sullivan v. Bd. of Educ. of

the City Sch. Dist. of the City of N.Y., 2023 N.Y. Misc. LEXIS
7

2468 (N.Y. Sup. Ct. 2023).

Plaintiff Carla Grant executed a

similar waiver with the Department of Transportation in exchange
for health benefits through June 30, 2022.
Dismiss, Ex. D; ECF No. 90-4.

See Renewed Mot. to

These plaintiffs’ claims are thus

also barred by res judicata.
These issues notwithstanding, the case is dismissed in
its entirety, with the exception of two claims brought by Amoura
Bryan, for the reasons that follow.
Standard of Review
To overcome a motion to dismiss under Rule 12(b)(6), a
complaint must plead facts sufficient “to state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007). 7

Bell Atlantic Corp. v.

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.”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).
On a motion to dismiss, the district court must accept
all factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiffs’ favor.

See Lundy v.

Catholic Health Sys. Of Long Island Inc., 711 F.3d 106, 113 (2d
Cir. 2013).

However, the Court need not construe legal

Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
7

8

conclusions dressed as facts in favor of the plaintiffs.

See

Iqbal, 556 U.S. at 663 (“[T]he tenet that a court must accept a
complaint’s allegations as true is inapplicable to threadbare
recitals of a cause of action’s elements, supported by mere
conclusory statements.”).
Additionally, district courts must police their own
subject matter jurisdiction.

See Fed. R. Civ. P. 12(h)(3) (“if

the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”); Lyndonville
Savings Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir.
2000) (“[F]ailure of subject matter jurisdiction is not waivable
and may be raised at any time by a party or by the court sua
sponte.”).
Discussion
A.

Occupational Safety and Health Act
In their first cause of action, plaintiffs assert that

the City’s policy of conditioning employment on vaccination
violated their rights under the Occupational Safety and Health
Act (“OSHA”).

FAC ¶¶ 177-94.

Plaintiffs cite the “right” —

ostensibly emanating from Section 20(a)(5) of OSHA — to be free
from discrimination for “refus[ing] any medical examination,
medical treatment, or immunization/vaccine.”
29 U.S.C. § 669(a)(5).

Id. at ¶ 178; see

The plaintiffs assert a claim directly

under this Section, see, e.g., id. ¶¶ 183-85; alternatively,
9

they contend that even if OSHA establishes no private right of
action, this claim may be brought pursuant to 42 U.S.C. § 1983.
See id. ¶¶ 189-190, 193-94.
The Court need not reach the merits of plaintiffs’
OSHA claim.

There is no private right of action under OSHA, and

the claim may not be brought under Section 1983.
“Under OSHA, employees do not have a private right of
action.”

Donovan v. Occupational Safety & Health Rev. Comm’n,

713 F.2d 918, 926 (2d Cir. 1983).

On the contrary, “it is

apparent from [OSHA’s] detailed statutory scheme that the public
rights created by the Act are to be protected by the Secretary
and that enforcement of the Act is the sole responsibility of
the Secretary.”

Id. at 927.

Several recent cases in this

circuit have applied this conclusion in virtually identical
circumstances, barring private plaintiffs from bringing COVID19-related claims under OSHA.

See, e.g., Vasquez v. City of New

York, No. 22-CV-05068, 2024 WL 1348702, *11 (E.D.N.Y. Mar. 30,
2024), reconsideration denied, No. 22-CV-05068, 2024 WL 1886656
(E.D.N.Y. Apr. 30, 2024); Quirk v. DiFiore, 582 F. Supp. 3d 109,
115-16 (S.D.N.Y. 2022).
Plaintiffs argue that even in the absence of a private
right of action under OSHA, 42 U.S.C. § 1983 provides the
vehicle for a Section 20(a)(5) claim.
This is not correct.

See ¶¶ 189-190, 193-94.

To seek redress through Section 1983, “a
10

plaintiff must assert the violation of a federal right, not
merely a violation of federal law.
U.S. 329, 340 (1997).

Blessing v. Freestone, 520

And even when a plaintiff can point to an

individually enforceable right, and locate herself within the
class of intended beneficiaries, a Section 1983 claim will still
be dismissed if such an action “would be inconsistent with
Congress’[s] carefully tailored [remedial] scheme.”

Golden

State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107
(1989).

That will be the case where, for example, Congress has

created “a comprehensive enforcement scheme that is incompatible
with individual § 1983 enforcement.”

Blessing, 520 U.S. at 330;

see City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121
(2005) (“The express provision of one method of enforcing a
substantive rule suggests that Congress intended to preclude
others.”).
In the case of OSHA, “it is apparent from the detailed
statutory scheme that the public rights created by the Act are
to be protected by the Secretary” of Labor, “and that
enforcement of the Act is the sole responsibility of the
Secretary.”

Donovan, 713 F.2d at 927; see also Jacobsen v. N.Y.

City Health & Hosps. Corp., No. 12 Civ. 7460, 2013 WL 4565037,
at *7 (S.D.N.Y. Aug. 28, 2013) (collecting cases noting the
same).

Given this detailed scheme — as well as the Second

Circuit’s directive to read enforcement as reserved to the
11

Secretary — it is clear that allowing OSHA enforcement under
Section 1983 would be “incompatible” with Congress’s dictates.
Blessing, 520 U.S. at 341.

Thus, plaintiffs may not prosecute

their OSHA claim under Section 1983.
B.

Constitutional Claims
Plaintiffs allege constitutional claims under both the

First Amendment’s Free Exercise Clause and under a Fourteenth
Amendment substantive due process theory.

See FAC ¶¶ 195-226.

They seek remedies through 42 U.S.C. § 1983.

Id. ¶ 196.

However, plaintiffs have failed adequately to allege the
necessary elements of a Section 1983 claim.
1.

First Amendment: Free-Exercise Claim
Plaintiffs allege that the vaccine mandate

unconstitutionally impinges on the free exercise of their
religion.

This argument has already been rejected by the Second

Circuit, which held that a vaccine mandate covering certain New
York State employees did not violate the Free Exercise Clause
because the mandate was a neutral law of general applicability.
See We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 290 (2d
Cir. 2021), opinion clarified, 17 F.4th 368 (2d Cir. 2021).
The First Amendment dictates that “Congress shall make
no law . . . prohibiting the free exercise [of religion].”

U.S.

Const. amend I; see Cantwell v. Connecticut, 310 U.S. 296, 303
(1940) (incorporating the Clause against the states).
12

To state

a Free Exercise Claim, a plaintiff must, as a threshold matter,
allege a “sincerely held” religious belief.

See Fifth Ave.

Presbyterian Church v. City of New York, 293 F.3d 570, 574 (2d
Cir. 2002).

Having done so, they must then plausibly allege

that “the object of [the challenged] law is to infringe upon or
restrict practices because of their religious motivation,” or
that the law’s “purpose . . . is the suppression of religion or
religious conduct.”

Okwedy v. Molinari, 69 F. App’x. 482, 484

(2d Cir. 2003).
As noted above, only one plaintiff has made even the
faintest effort to describe the religious beliefs at issue with
any specificity at all. 8

In that regard, the claims here are

even weaker than those rejected in We The Patriots.

Cf. We The

Patriots, 17 F.4th at 272 (plaintiffs contended that vaccination
“would violate their religious beliefs because those vaccines
were developed or produced using cell lines derived from cells
obtained from voluntarily aborted fetuses.”).

In making this

observation, this Court need not — and does not — engage in
sincerity analysis.

That process is constitutionally fraught. 9

Apart from the one plaintiff described as following the “biblical
practice of plant-based lifestyle medicine,” FAC ¶¶ 138-42, 203, plaintiffs
do not enumerate their specific religious objections to the vaccine mandate.
Plaintiffs instead refer generally to their “religious practice of abstaining
from the COVID-19 [vaccine].” FAC ¶ 159.
9 “In a country with the religious diversity of the United States,
judges cannot be expected to have a complete understanding and appreciation
of the role played by every person who performs a particular role in every
religious tradition.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591
8

13

It is also, however, inherently fact-intensive; as such it
cannot even be attempted where, as here, plaintiffs have pled
virtually nothing about the beliefs at issue. 10
More importantly, the plaintiffs have not alleged that
the mandates targeted religion or treated religious belief less
generously than lay practice.

Under existing precedent, a law

does not violate the Free Exercise Clause if it is generally
applicable, the government can articulate a rational basis for
enforcement, and any burden upon religion is incidental rather
than purposeful.

See Emp. Div., Dep’t of Hum. Res. of Or. v.

Smith, 494 U.S. 872, 879 (1990); Emilee Carpenter, LLC v. James,
107 F.4th 92, 109 (2d Cir. 2024).

At the same time, laws that

treat religious belief less favorably than other conduct are not
generally applicable (or, said differently, they are not
“neutral” towards religion).

Roman Catholic Diocese of Brooklyn

v. Cuomo, 592 U.S. 14, 18 (2020) (per curiam); see Okwedy, 69 F.
App’x. at 484.
It was against this legal landscape that the Second
Circuit rejected the Free Exercise Clause challenge to the
State’s vaccine mandate in We The Patriots, 17 F.4th at 290,

U.S. 732, 757 (2020); see also Presbyterian Church in the U.S. v. Mary
Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 451 (1969)
(civil courts should not resolve questions that would require them “to engage
in the forbidden process of interpreting and weighing church doctrine”).
10 We return to this issue in the analysis of plaintiffs’ Title VII
religious-discrimination claims. See Section III.C below.
14

which post-dated Roman Catholic Diocese.

There, the Court of

Appeals held that the vaccine mandate was facially neutral
because a) “the evidence before the district courts failed to
raise an inference that the regulation was intended to be a
covert suppression of particular religious beliefs,” and b)
certain comments made by Governor Kathy Hochul were not
reasonably understood to reveal that the vaccine mandate was
targeted at individuals with religious opposition to required
vaccination. Id. at 282-284.

Additionally, the Court held that

despite medical exceptions to the mandate, the law was generally
applicable because “[c]omparability is concerned with the risks
various activities pose,” and medical exemptions are far
narrower and more connected to a compelling government interest
in health promotion than religious exemptions.

Id. at 285-288. 11

That holding binds this Court.
This case bears no material distinction from We The
Patriots and other cases previously decided in this Circuit.
Plaintiffs have failed to state a violation of the Free Exercise
clause.
2.

Substantive Due Process

11 See also Kane v. de Blasio, 623 F. Supp. 3d 339, 356-58 (S.D.N.Y.
2022) (vaccine mandate for City employees was neutral and generally
applicable, and DOE articulated a rational basis for the policy); Rizzo v.
NYC Dep’t of Sanitation, No. 23-CV-7190, 2024 WL 3274455, at *5 (S.D.N.Y.
July 2, 2024) (collecting cases rejecting Free Exercise challenges to City
employee vaccine policies).

15

The due process clause has been held to have a
“substantive” component, guaranteeing some unenumerated rights.
The first step in evaluating a substantive due process claim “is
to identify the constitutional right at stake.”

Kaluczky v.

City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995).

Here,

Plaintiffs invoke “the inherent right of every freeman to care
for his own body and health in such way as to him seems best”
and, on that basis, to decline unwanted medical treatment.

FAC

¶ 199-202 (citing Jacobson v. Massachusetts, 197 U.S. 11, 26
(1905)).
To succeed, the plaintiffs must establish that the
right they claim is “deeply rooted in this Nation’s history and
tradition” and “implicit in the concept of ordered liberty.”
Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

They have

not clearly attempted to do so, and any such effort would not
succeed.

The Supreme Court and Second Circuit have

“consistently recognized that the Constitution embodies no
fundamental right that in and of itself would render vaccine
requirements imposed in the public interest, in the face of a
public health emergency, unconstitutional.”
F.4th at 293.

We The Patriots, 17

Indeed, Jacobson, which plaintiffs cite for the

right to decline medical treatment, held that “urgent public
health needs of the community can outweigh the rights of an
individual to refuse vaccination.”
16

Id. at 293 n.35 (explaining

why Jacobson remains binding).

On this basis, a neighboring

district court held that New York’s vaccine mandate implicated
no fundamental right, and that no substantive due process
violation had been visited upon City employees.
F. Supp. 3d at 360-61.

See Kane, 623

The reasoning in that case applies with

equal force here.
Because plaintiffs have not articulated a fundamental
constitutional right, they fail to state a substantive due
process claim upon which relief may be granted.
C.

Title VII
Plaintiffs’ claim of religious discrimination under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq., is similarly without merit, for all plaintiffs but one.
Plaintiffs allege that the City “violated Title VII by
placing Plaintiffs on indeterminate [leave without pay] for
exercising their right to refuse to submit to the Vaccine
orders. . . .”

See FAC ¶ 233.

To establish a prima facie case

of religious discrimination under Title VII, a plaintiff must
allege that that (1) she held a “bona fide religious belief
conflicting with an employment requirement"; (2) she informed
her employer of this belief; and (3) she was “disciplined for
failure to comply with the conflicting employment requirement.”
Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 167 (2d Cir.
2001).

The Second Circuit has explained that “the evidence
17

necessary to satisfy this initial burden [i]s minimal . . . .”
Zimmermann v. Asscs. First Cap. Corp., 251 F.3d 376, 381 (2d
Cir. 2001).

However, at the motion to dismiss stage, a

plaintiff “must at a minimum assert nonconclusory factual matter
sufficient to nudge its claims’ across the line from conceivable
to plausible to proceed.”

E.E.O.C. v. Port Auth. of NY & NJ,

768 F.3d 247, 254 (2d Cir. 2014).
be held liable under Title VII.

Individual defendants may not
Lore v. City of Syracuse, 670

F.3d 127, 169 (2d Cir. 2012).
To identify a bona fide religious belief, courts
assess “whether the beliefs professed by a claimant are
sincerely held and whether they are, in his own scheme of
things, religious.”

Patrick v. LeFevre, 745 F.2d 153, 157 (2d

Cir. 1984) (citing United States v. Seeger, 380 U.S. 163, 185
(1965).

“Sincerity analysis is exceedingly amorphous, requiring

the factfinder to delve into the claimant’s most veiled
motivations and vigilantly separate the issue of sincerity from
the factfinder’s perception of the religious nature of the
claimant’s beliefs.

This need to dissever is most acute where

unorthodox beliefs are implicated.”

Id.

To determine whether a

plaintiff’s belief is “religious,” courts must analyze whether
the plaintiff’s professed beliefs implicate “ultimate
concern[s].”

Int'l Soc. For Krishna Consciousness, Inc. v.

Barber, 650 F.2d 430, 440 (2d Cir. 1981).
18

A concern is

“ultimate” when “a believer would categorically disregard
elementary self-interest in preference to transgressing its
tenets.”

Id.
If a plaintiff satisfies her burden to allege a prima

facie case of religious discrimination, the burden shifts to the
employer “to show that it cannot reasonably accommodate the
plaintiff without undue hardship on the conduct of the
employer’s business.”

Philbrook v. Ansonia Bd. of Educ., 757

F.2d 476, 481 (2d Cir. 1985), aff’d and remanded, 479 U.S. 60
(1986).

An accommodation is an undue burden when it is

“substantial in the overall context of an employer’s business.”
Groff v. DeJoy, 600 U.S. 447, 468 (2023).

This, too, is a

“fact-specific inquiry,” which requires the Court to analyze
“all relevant factors in the case at hand, including the
particular accommodations at issue and their practical impact in
light of the nature, size, and operating cost of an employer.”
Id. at 468, 470-71.
One plaintiff, Amoura Bryan, has cleared the
(relatively low) hurdle to allege a prima facie case. 12

Ms.

Bryan subscribes to the “religious Biblical medical practice of
Plant-Based Lifestyle Medicine, which includes consuming a 100%
12 Ms. Bryan did not attach a right-to-sue letter to the complaint.
See
Pl.’s Ex. 2, ECF No. 88-2. However, exhaustion of administrative remedies is
not a pleading requirement, as “the burden of pleading and proving Title VII
exhaustion lies with defendants and operates as an affirmative defense.”
Hardaway v. Hartford Public Works Dep’t, 879 F.3d 486, 491 (2018).

19

plant-based diet according to the Bible instruction in Genesis
1:29 along with practicing the nine (9) lifestyle interventions
also prescribed by the Bible, namely exercise, water, outdoor
fresh air, cleanliness or hygiene to name a few.”

FAC ¶ 138.

She alleges that receiving the COVID-19 vaccination is
inconsistent with this belief because she hoped to rely upon
biblical medical practices for protection from COVID-19.
id. ¶¶ 139-142.

See

Additionally, Ms. Bryan pleads that “for

exercising her religious practice” — that is, for declining to
be vaccinated — she was placed on leave without pay.

Id. ¶ 142.

These allegations, while highly general, are sufficient at this
stage.

And the assessment of whether the City could have

reasonably accommodated Ms. Bryan without undue hardship is a
fact-intensive assessment that cannot be determined from within
the four corners of the complaint.

See Groff, 600 U.S. at 468.

Therefore, Ms. Bryan’s Title VII claim may proceed,
but only against certain municipal defendants: the City and the
Department of Education (because, as noted above, individuals
may not be liable under Title VII).

Lore, 670 F.3d 169.

The

third municipal defendant, the Department of Health and Mental
Hygiene, is not Ms. Bryan’s employer.

FAC ¶ 138.

For all other plaintiffs, the Fourth Amended Complaint
does not allow the reader to divine a bona fide belief — even at
the highest levels of generality.
20

See Cagle v. Weill Cornell

Medicine, 680 F. Supp. 3d 428, 435-36 (S.D.N.Y. 2023) (plaintiff
failed to allege bona fide belief, where complaint alleged only
that she had “religious beliefs” and that those beliefs included
“religious practices of non-vaccination”); Friend v. AstraZeneca
Pharms. LP, 2023 WL 3390820, at *3 (D. Md. May 11, 2023) (“While
Plaintiff’s complaint asserts that he ‘had bona fide religious
beliefs that conflicted with AstraZeneca’s COVID-19 vaccine
mandate,’ it alleges no facts to allow this Court to assess what
Plaintiff’s religious beliefs are and how they conflict.”);
McKinley v. Princeton Univ., No. 22-CV-5069, 2023 WL 3168026, at
*2 (D.N.J. Apr. 28, 2023) (“Without Plaintiff providing facts
showing what sincerely held religious belief she holds that
prevented her from complying with COVID-19 Policies, Plaintiff
fails to adequately allege a cognizable claim for religious
discrimination.”).

As described above, plaintiffs claim

religious objections to the COVID-19 vaccine.

FAC ¶ 1.

Yet

they provide no supporting facts, which prevents the Court from
analyzing whether these beliefs are sincerely held or implicate
ultimate concerns.

See, e.g., id. ¶¶ 16-18, 20-36.

In addition, there are portions of the complaint that
invoke non-religious motivations for the plaintiffs’ vaccine
refusal.

For example, in a single sentence that runs almost two

pages, the plaintiffs refer to having exercised their
“fundamental right” to refuse vaccination “on religious and non21

religious grounds.”

Id. ¶ 1; see also id. ¶ 36 (referring to

requests for “religious and / or medical exemptions”).

Absent

any detail about plaintiffs’ religious beliefs, the plaintiffs
cannot claim that they are bona fide.
D.

New York City Human Rights Law
Plaintiffs also allege religious discrimination under

the New York City Human Rights Law (“NYCHRL”).

The NYCHRL

prohibits discrimination based on the actual or perceived
“creed” or religion of any person.
107(1)(a).

N.Y.C. Admin. Code § 8–

A NYCHRL claim must be construed “more liberally

than its State and federal counterparts,” in favor of
plaintiffs, “to the extent that such a construction is
reasonably possible.”

Makinen v. City of New York, 857 F.3d

491, 495 (2d Cir. 2017); Loeffler v. Staten Island Univ. Hosp.,
582 F.3d 268, 278–79 (2d Cir. 2009).
1.

Plaintiff Bryan Has Alleged a Prima Facie Case of
Religious Discrimination Under the NYCHRL
Like Title VII, the City’s Human Rights Law requires a

plaintiff to allege a bona fide religious belief to make out a
prima facie case of discrimination.

Specifically, under the

NYCHRL, a plaintiff must demonstrate that “(1) they held a bona
fide religious belief conflicting with an employment
requirement; (2) they informed their employers of this belief;
and (3) they were disciplined for failure to comply with the
22

conflicting employment requirement.”

Weber v. City of New York,

973 F. Supp. 2d 227, 263 (E.D.N.Y. 2013) (collecting cases).
Ms. Bryan is the only plaintiff who articulates a
prima facie NYCHRL religious-discrimination claim.

She (a)

articulates a bona fide belief in the “biblical practice” of
plant-based medicine; (b) pleads that she told her employers
about this belief; and (c) alleges retaliation for refusal to
receive vaccination.

FAC ¶¶ 138-142.

These claims meet the

threshold for Ms. Bryan to proceed under the NYCHRL at this
stage.

No other plaintiffs, however, approach even this low

pleading bar.

See Lugo v. City of New York, 518 F. App’x 28, 30

(2d Cir. 2013) (“While the NYCHRL is indeed reviewed
independently from and more liberally than federal or state
discrimination claims, it still requires a showing of some
evidence from which discrimination can be inferred.”); Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981).
At the next step of NYCHRL analysis, the burden shifts
to the employer “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.”

Forrest v. Jewish Guild

for the Blind, 3 N.Y.3d 295, 305 (N.Y. 2004).
cannot carry that burden.

Here, defendants

At the motion to dismiss stage, the

Court may only consider the facts in the FAC, which pleads that
23

plaintiff’s religion was not accommodated.

See FAC ¶¶ 138-42;

Davis v. Boeheim, 24 N.Y.3d 262, 268 (N.Y. 2014).

Thus, Ms.

Bryan’s NYCHRL claim may proceed.
2.

Bryan’s NYCHRL Claim May Proceed Against Certain
Municipal Defendants
Under the NYCHRL, an employer like New York City is

liable for the conduct of its employee or agent “only where”:
(1) “the employee or agent exercised managerial or supervisory
responsibility;” (2) “the employer knew of [an] employee’s or
agent’s discriminatory conduct, and acquiesced in such conduct
or failed to take immediate and appropriate corrective action .
. .”; or (3) the employer “should have known of the employee’s
or agent’s discriminatory conduct and failed to exercise
reasonable diligence to prevent [it].”

N.Y.C. Admin. Code § 8-

107(13)(b).
Here, the third factor is easily satisfied at this
stage: the City cannot (and does not) contend that it lacked
knowledge of the vaccine mandate, the absence of a religious
exemption therefrom, or the consequences of non-compliance.
Thus, Ms. Bryan’s NYCHRL claim is proper against the City of New
York and the Department of Education.

As noted above, however,

the Department of Health and Mental Hygiene is not Ms. Bryan’s
employer.
3.

FAC ¶ 138.
Bryan’s NYCHRL Claims Against the Individual
Defendants Are Dismissed
24

Unlike Title VII claims, NYCHRL claims may be brought
against individual defendants.

See McLeod v. Jewish Guild for

the Blind, 864 F.3d 154, 157 (2d Cir. 2017).

In addition,

supervisory liability for individual defendants is available
under the statute — though not based on the supervisor’s
position alone.

See Marchuk v. Faruqi & Faruqi, LLP, 100 F.

Supp. 3d 302, 308 (2015).
To establish liability against a supervisor, a
plaintiff must “prove at least some minimal culpability on the
part of” that individual.

Id. at 309.

So, for example, the

district court dismissed a NYCHRL claim against former New York
State Attorney General Eric Schneiderman and another State
executive where the plaintiff had “fail[ed] to allege any facts
which could tend to show that either defendant was ever aware of
[plaintiff’s] allegations of discrimination or otherwise
participated in discriminatory conduct.”

Morgan v. N.Y. Atty.

Gen.’s Office, 11-CV-9389, 2013 WL 491525, at *13 (S.D.N.Y. Feb.
8, 2013).
Applying this standard, the individual defendants must
be dismissed on this claim.

13

There are no allegations in the

The individual defendants are Mayor Eric Adams, former Mayor Bill de
Blasio, NYC Department of Health and Mental Hygiene Commissioner Ashwin
Vasan, former Health and Mental Hygiene Commissioner Dave Chokshi, and “Does
1-20,” about whom no details are pled in support of the discrimination
claims. FAC ¶¶ 40-41, 43-44. The Does are referenced on the face of the
13

25

complaint that any individual defendant personally participated
in the employment decisions at issue or bears any individual
“culpability” for Ms. Bryan’s termination.
Supp. 3d at 309.

Marchuk, 100 F.

For instance, the complaint does not allege

that Mayor de Blasio had any personal role in crafting the
employment consequences for vaccine refusal, the contours of any
exemptions or accommodations, or the application of those
policies to any person.
generally FAC.

See Morgan, 2013 WL 491525, at *13; see

Ms. Bryan’s NYCHRL claim will therefore proceed

only against the City and the Department of Education.
E.

Federal Declaratory Judgment Act
Plaintiffs attempt to bring a cause of action under

the Federal Declaratory Judgment Act, seeking declaratory and
injunctive relief.

See 28 U.S.C. § 2201; FAC ¶¶ 234-54.

District courts have discretion to determine whether and when to
entertain declaratory judgment actions.
Falls Co., 515 U.S. 277, 282 (1995).

See Wilton v. Seven

This court denied

plaintiffs’ request to amend their complaint to include claims
for declaratory and injunctive relief under 28 U.S.C. §§ 220102, see Women of Color for Equal Just. v. City of N.Y., 2022 WL
17083109, at *4 (E.D.N.Y. Nov. 18, 2022), and those rulings

complaint but never again in the document. See generally id. Mayor Adams
and Commissioner Vasan are sued in their official capacities, while former
Mayor DeBlasio and former Commissioner Chokshi are sued in their personal
capacities. FAC ¶¶ 40-41, 43-44.
26

remain the law of the case.

See Musacchio v. United States, 577

U.S. 237, 244-45 (2016) (“[W]hen a court decides upon a rule of
law, that decision should continue to govern the same issues in
subsequent stages in the same case.”).

Thus, the Court declines

to entertain a declaratory judgment action here, either.
F.

Common Law Fraud
Finally, Plaintiffs allege that all defendants are

liable for common-law fraud.

Plaintiffs allege a handful of

false statements and omissions made by New York City’s Health
Commissioner, Dave A. Chokshi, in the Vaccine Orders.

For

example, plaintiffs claim that Dr. Chokshi
falsely represented in the Vaccine Orders that
‘vaccination is an effective tool to prevent the
spread of Covid-19 and benefits both vaccine
recipients and those they come into contact with’ when
it is impossible for any vaccine to shield any person
from exposure or prevent anyone from coming into
contact with any hazardous airborne communicable
disease in the workplace atmosphere.
FAC ¶ 275.

No plaintiff has established standing to bring this

claim.
In federal court, plaintiffs are obligated to
“demonstrate standing for each claim that they press and for
each form of relief that they seek.”
594 U.S. 413, 431 (2021).

TransUnion LLC v. Ramirez,

In other words, standing must be

alleged on a claim-by-claim basis.

27

See Friends of the Earth,

Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S.
167, 180-81 (2000).
There are three familiar elements of Article III
standing.
fact.”
(1992).

First, a plaintiff must have suffered an “injury in

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
“To establish injury in fact, a plaintiff must show

that he or she suffered “an invasion of a legally protected
interest” that is “concrete and particularized” and “actual or
imminent, not conjectural or hypothetical.”

Spokeo, Inc. v.

Robins, 578 U.S. 330, 339 (2016), as revised (May 24, 2016).
Particularized means that it “affect[s] the plaintiff in a
personal and individual way.”

Id.

Second, “the injury has to be fairly traceable to the
challenged action of the defendant.”

Lujan, 504 U.S. at 560.

“Fairly traceable” means that “there must be a causal connection
between the injury and the conduct complained of.”

Dep’t of Ed.

v. Brown, 600 U.S. 551, 561 (2023) (discussing Lujan).

To prove

causation, “the plaintiff must show a predictable chain of
events leading from the government action to the asserted injury
— in other words, that the government action has caused or
likely will cause injury in fact to the plaintiff.”

Food & Drug

Admin. v. All. for Hippocratic Med., 602 U.S. 367, 385 (2024).

28

Finally, it must be “likely” rather than “speculative”
that the injury will be “redressed by a favorable decision.”
Lujan, 504 U.S. at 561.
The FAC describes three classes of plaintiffs: (1) the
“locked out class” of City employees who refused vaccination;
(2) the “coerced class” who received COVID-19 vaccines “so that
they could get their jobs and salary back”; and (3) “City
employees who relied on the City’s material misrepresentation
that the Covid-19 vaccine ‘is an effective tool to prevent the
spread of Covid-19’ (See Vaccine Orders) and submitted to the
administrative injection of the Covid-19 into their bodies and
thereafter experienced one or more Covid-19 infections that
resulted in physical, and/or psychological injury . . . .”

Id.

¶ 11(a)-(c).
The third class refers to a fraud-induced injury.

The

problem for the plaintiffs is that, while the FAC describes this
class, no individual plaintiff alleges any injury traceable to
the City’s alleged misrepresentations.
the plaintiffs).

FAC ¶¶ 11-38 (describing

Allegations that “thousands of people” were

harmed is insufficient to state a particularized injury that any
individual plaintiff was harmed.
U.S. at 339 (2016).

Id. ¶ 282; see Spokeo, 578

Indeed, it is axiomatic that “a citizen

does not have standing to challenge a government regulation

29

simply because the plaintiff believes that the government is
acting illegally.”

All. for Hippocratic Med., 602 U.S. at 381.

A detailed, plaintiff-by-plaintiff assessment reveals
that no plaintiff claims that he or she got vaccinated in
reliance on the alleged misrepresentations at issue — or any
other facts that could plausibly be construed as a basis for
membership in the “misrepresentation class.”

Thus, no

individual plaintiff has standing for plaintiffs’ fraud claim.
Most plaintiffs refused COVID-19 vaccination and
therefore could not be injured by reliance on allegedly false
statements about the vaccine’s effectiveness.

FAC ¶ 12-36

(detailing that sixty out of the sixty-five named plaintiffs
refused vaccination). 14

Three plaintiffs do not allege whether

or not they were vaccinated and therefore similarly cannot state
a particularized injury relating to the alleged misstatements.
The complaint describes the remaining two plaintiffs
as belonging to the “coerced class” — those who received COVID19 vaccines based on the threat of adverse employment
consequences.

Id. ¶¶ 11(b), 37-38.

Only one of the two, Jesus

Coombs, alleges that he was infected with COVID-19 following
vaccination.

Id. ¶ 38.

Mr. Coombs pleads that he “took the

14 The Court counts sixty-five named plaintiffs, assuming that a)
plaintiffs whose names are spelled in different ways are the same person; and
b) plaintiffs whose names are listed twice are only one person, rather than
two people with the same name. See generally FAC; Docket No. 22-CV-2234.

30

Covid-19 vaccine and thereafter sustained a Covid-19 infection
and health problems.”

Id.; see also id. ¶ 169.

His allegation

that he experienced health problems following vaccination states
a concrete injury.

Spokeo, 578 U.S. at 339.

But, Mr. Coombs’s

injury is not “fairly traceable” to the fraud claim.
U.S. at 560-61.

Lujan, 504

The FAC pleads that:

On January 13, 2022, Mr. Coombs was placed on leave
without play for refusing to submit to the Vaccine
Orders. He was scheduled to be terminated, but
because he is the sole income earner in his home, he
with much gilt, anxiety and distress, submitted to the
Vaccine Order and returned to work on February 15,
2022.
FAC ¶ 38.

This passage suggests no reliance on — or even

awareness of — the Health Commissioner’s allegedly false
statements.

Id.

Put differently, Mr. Coombs does not allege a

causal link between any allegedly fraudulent statement and his
injury.

See All. for Hippocratic Med., 602 U.S. at 385.

Therefore, Mr. Coombs, too, lacks standing to bring a fraud
claim.

Because no plaintiff has standing to bring this claim,

it is dismissed for lack of jurisdiction. 15
Conclusion
With the exception of Ms. Bryan’s Title VII and NYCHRL
claims against the City and the Department of Education,

file a
that a
action
ninety

This claim is also likely untimely, based on plaintiffs’ failure to
notice of claim with the City. See N.Y. Gen. Mun. Law 50-e (requiring
plaintiff must file a notice of claim prior to commencement of an
against a municipality and must serve the notice of claim within
(90) days after the claim arises).

15

31

plaintiffs’ claims are dismissed.
dismissed without prejudice.

Plaintiffs’ fraud claim is

See Katz v. Donna Karan Co.,

L.L.C., 872 F.3d 114, 116 (2d Cir. 2017) (dismissal for lack of
subject matter jurisdiction must be without prejudice).
other claims are dismissed with prejudice.

All

See, e.g., Liang v.

Home Reno Concepts, LLC, 803 F. App’x 444, 448 (2d Cir. 2020)
(denying leave to amend was proper where plaintiff already had
“three bites at the apple” and was still unable to state a
claim); Foman v. Davis, 371 U.S. 178, 182 (1962) (courts may
deny leave to amend based on “futility of amendment”); Wallace
v. Conroy, 945 F. Supp. 628, 639 (S.D.N.Y. 1996) (collecting
cases).
Finally, plaintiffs’ motion for sanctions and motion
to vacate the denial of preliminary injunctive relief are
denied.

ECF Nos. 64, 74.

The motion to strike the Fourth

Amended Complaint and all other pending motions related to the
Fourth Amended Complaint and the motion to dismiss are denied as
moot.

ECF Nos. 75, 82, 83, 87, 96, 98.
A status conference on the remaining claims shall be

held at 10:30 AM on November 7, 2024 in Courtroom 6G North.

SO ORDERED.

32

/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated:

September 25, 2024
Brooklyn, New York

33