Appealing the implementation and enforcement of New York City’s COVID-19 Vaccine Mandate

Named plaintiffs and other current and former employees [collectively Plaintiffs] of the New York City Department of Education [DOE] appealed a judgment of a federal district court dismissing their 42 U.S.C. §1983 claims filed against the DOE, Plaintiffs’ unions, and various individuals, challenging the implementation and enforcement of New York City’s COVID-19 Vaccine Mandate.* 

In August 2021, the Commissioner of the New York City Department of Health and Mental Hygiene issued an order requiring all DOE employees to show proof of vaccination against COVID-19 by September 27, 2021. In response, the unions sought to negotiate the terms of the Vaccine Mandate to limit its impact on their members.

Those negotiations were unsuccessful and DOE and two of the unions – the United Federation of Teachers and the Council of Supervisors and Administrators – agreed to enter into binding arbitration to resolve the issues. The Arbitrator, Martin Scheinman, issued two "largely identical arbitration awards". The remaining union – District Council 37 – reached an agreement with the DOE in early October that mirrored Scheinman’s previous arbitration awards. Thus, all Plaintiffs “were subject to similar terms regarding the Vaccine Mandate procedures.”

Plaintiffs, contending that DOE suspended and terminated their employment “without due process,” appealed the federal district court's decision dismissing their 42 U.S.C. §1983 claims. Citing Ashcroft v. Iqbal, 556 U.S. 662, the Circuit Court sustained the district court's decision, noting "the repetition of a legal conclusion does not state a claim" as "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”

In addition, Plaintiffs had asked the Circuit Court to grant them leave to amend their complaint. The district court had  denied their request for leave to file a second amended complaint. The Circuit Court said "Plaintiffs present no argument at all as to why that decision [by the district court] was wrong". Instead, opined the Circuit Court, Plaintiffs’ request merely “indicate[s] a desire to amend” while failing “to make a showing that the complaint’s defects can be cured.” The Circuit Court denied the Plaintiffs' request.

The Circuit Court decision opines that "Plaintiffs clearly disagree with their unions’ decisions to arbitrate the implementation of the Vaccine Mandate," a decision they insist exceeded the authority of the unions and DOE under state law. But, observed the Circuit Court, "that it is not enough to establish a federal procedural due process violation. Because plaintiffs have presented no facts that would call into question the adequacy of the pre- and post-deprivation process afforded them, their federal due process claims – including their derivative conspiracy claims and class claims – must be dismissed."

As to any "state-law claims" raised by Plaintiffs, the Circuit Court of Appeals, Second Circuit, declined to exercise supplemental jurisdiction over those claims and dismiss them without prejudice.

* Specifically, Plaintiffs argue that the federal district court erred by dismissing their claims against the defendants for violating their Due Process rights by adopting procedures for enforcing the Vaccine Mandate that resulted in the suspension and termination of DOE employees who refused to be vaccinated.

Click HERE to access the Second Circuit's decision posted on the Internet.

 

Two cases of Jobbery reported by New York State Comptroller Thomas P. DiNapoli

As noted in previous NYPPL reports of misconduct involving a public employee stealing public funds, such breaches of the public trust are frequently referred to as "jobbery." Merriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain". 

The two most recent cases of jobbery reported by the Comptroller are listed below:

1. A former treasurer of the Morley Volunteer Fire Company was ordered to pay $50,000 in restitution and sentenced to serve five years of probation for stealing from the fire company. Click HERE to access the State Comptroller's press release reporting the disposition of this matter.

2. A former tax collector for the town of Beekman was sentenced to pay full restitution of $88,821.40, five years’ probation, community service, and time served. Click HERE to access the State Comptroller's press release reporting the disposition of this matter.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236, or by filing a complaint online at https://www.osc.state.ny.us/investigations.

 

A factual demonstration and proof is required to support an allegation that the rejection of an individual's applications for disability retirement benefits was tainted by bias

The Appellate Division unanimously affirmed Supreme Court's denying the Plaintiff's petition seeking to annul the Medical Board's [Board] rejection of Plaintiff's applications for accidental disability retirement [ADR] or ordinary disability retirement [ODR]. The court said that the Plaintiff failed to show that Board's determination denying Plaintiff's applications was arbitrary and capricious or in violation of lawful procedure.

The Board, said the court, was entitled to rely on its own review of Plaintiff's medical records, including MRI reports, as well as its own examination of Plaintiff, all of which provided some credible evidence supporting the Board's finding that Plaintiff's conditions were not causally related to an October 10, 2013 incident in which Plaintiff  claimed he was injured. In addition, the Appellate Division noted the "resolution of conflicting evidence was for the Medical Board", citing Matter of DeMeo v Teachers Retirement Sys. of the City of N.Y., 180 AD3d 560.

As the Board had provided a "lengthy and fact specific recitation of the reasons for its determination and its mention of the principal's letter was not dispositive," the Appellate Division rejected Plaintiff's contention that "the Medical Board was biased against him because it referred to a letter from the [Plaintiff's] school principal in which the principal opined as to the extent of [Plaintiff's] injuries".

Citing James v National Arts Club, 99 AD3d 523, lv dismissed, 21 NY3d 886, the Appellate Division explained a "mere allegation of bias is insufficient" and Plaintiff did not provide a factual demonstration to support his claim and proof that rejection of his application for disability retirement benefits "was tainted by bias".

Click HERE to access the Appellate Division's decision posted on the Internet.