Judge Denies Relief to FDNY Firefighters Challenging Vaccine Mandate

A US District Court judge has denied a request by FDNY firefighters seeking to block the city’s COVID vaccine mandate. The suit was filed on November 24, 2021 by fifty members of FDNY who were placed on leave without pay because they had not been vaccinated for COVID19 by the November 1, 2021 deadline. The suit named the New York City Fire Department and Fire Commissioner Daniel A. Nigro as defendants.

The facts and legal conclusions were explained by Judge Kiyo A. Matsumoto as follows:

  • Plaintiffs assert four claims in their Complaint.
  • First, Plaintiffs claim that the Order violates their procedural due process rights because they have property interests in their continued employment and pay.
  • Second, they assert that the Order violates their statutory and contractual rights, as Plaintiffs are entitled to certain process prior to removal pursuant to N.Y.C. Admin. Code § 15-113, or the applicable collective bargaining agreement.
  • Third, Plaintiffs assert a § 1983 claim, arguing that Defendants, acting under color state of law, violated their procedural due process rights.
  • Fourth, Plaintiffs allege direct participation in, and aiding and abetting violations under 42  U.S.C. § 1983 against Defendant Nigro.
  • Plaintiffs seek a mandatory injunction restoring them to pay status and a prohibitory injunction against Defendants from disciplining Plaintiffs without first proffering charges and providing a pre-deprivation hearing, during which the person against whom the charges are brought can defend themselves before a neutral hearing officer.
  • For the reasons stated below, Plaintiffs’ motion for injunctive relief is respectfully DENIED.
  • As a threshold matter, Plaintiffs named as Defendants only the FDNY, Commissioner Nigro, and unnamed Jane and John Does.
  • “Under New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued.”
  • As such, the City of New York should have been named instead of the FDNY. Plaintiffs do not contest this point.
  • In addition, given the allegation that the UFA and the UFOA have breached their duty of fair representation by allegedly refusing to process Plaintiffs’ grievances, and to the extent Plaintiff members of [District Council] DC 37 are challenging the DC 37 Agreement, the UFA, the UFOA, and DC 37 are also necessary parties to this action.
  • Generally, a union member has no standing to enforce the collective bargaining agreement between their employer and union against the employer directly.
  • The Court finds that Plaintiffs failed to establish a “clear” or “substantial” likelihood of success on the merits on any of their claims.
  • Plaintiffs argue that Plaintiffs’ procedural due process rights were violated because the FDNY failed to proffer charges and provide a pre-deprivation hearing in accordance with the procedures set forth in New York City Administrative Code § 15-113.
  • As an initial matter, to determine whether process is adequate, the Court looks to “[f]ederal constitutional standards rather than state statutes [to] define the requirements of procedural due process.
  • In addition, the Court need not consider whether section 15-113 of the New York City Administrative Code was correctly followed because under New York law, the termination of a public employee based on the employee’s failure to satisfy a qualification of employment unrelated to job performance, misconduct, or competency does not implicate the disciplinary procedures set forth section 15-113.
  • Discipline of Plaintiffs for job performance, misconduct, or competency is not at issue here.
  • As Defendants correctly point out, the Second Circuit has held that “[v]accination is a condition of employment in the healthcare field.”
  • Given the state of public health emergency that our nation finds itself in due to the Coronavirus, the more transmissible Delta and Omicron variants, and the nature of Plaintiffs’ job as firefighters and EMT employees, interacting with members of the public on an emergency basis, and living in close quarters during their shifts, the Commissioner was within his powers to require COVID-19 vaccination as a qualification of employment for FDNY employees.
  • Plaintiffs failed to satisfy this condition of employment, rendering themselves no longer qualified to serve as FDNY employees.
  • Because termination based on a failure to satisfy a qualification of employment does not trigger the proffer of charges and pre-deprivation hearing requirements of section 15-113, Plaintiffs’ argument that Defendants violated their statutory rights is of no avail.
  • Turning to the issue of whether Plaintiffs’ due process rights under the Constitution were violated, the Second Circuit has “held on several occasions that there is no due process violation where, as here, pre-deprivation notice is provided and the deprivation at issue can be fully remedied through the grievance procedures provided for in a collective bargaining agreement.”
  • The Due Process Clause is implicated only when plaintiffs can establish that the grievance procedures in a collective bargaining agreement are an inadequate remedy.
  • Therefore, there is no due process violation for which relief may be granted where Plaintiffs failed to avail themselves of the grievance and arbitration procedures.
  • In any case, the Court finds that the process given to Plaintiffs satisfied the constitutional minimum.
  • Based on the record before the Court, the Court considers that both the pre-deprivation and post-deprivation processes afforded to Plaintiffs were constitutionally adequate.
  • An employee’s right to be provided with an opportunity to address concerns before a final decision is made can be “accomplished through informal procedures; no formal hearing [is] required.”
  • Pursuant to the Order, any FDNY employees who believed that the Order should not apply to them had the opportunity to seek a religious or medical accommodation, and they would continue to remain on pay status pending the decision on their request or appeal, so long as their accommodation requests were submitted prior to October 27, 2021.
  • Therefore, the Court finds that there was sufficient pre-deprivation notice and opportunity to respond.
  • The Court next considers to whether Plaintiffs have shown that they will likely suffer irreparable harm if not for the injunctive relief they seek.
  • The Court does not dispute that a loss of income is a real, tangible harm. Even so, to demonstrate an entitlement to injunctive relief, Plaintiffs must identify a harm for which available legal remedies and monetary damages would be inadequate. As noted decades ago by the United States Supreme Court, the type of harm Plaintiffs allege, loss of employment and pay, are definitionally reparable.
  • The Court finds that both the balance of equities and the public interest in protecting the public health disfavor the injunctive relief requested by Plaintiffs.
  • Firefighters and EMT employees interact frequently with members of the public who are in a medical emergency or other vulnerable positions.
  • Based on the available scientific and medical evidence, there is a significant, if not compelling, governmental interest in preventing the transmission of the Coronavirus and variants to members of the public with whom FDNY employees come into contact with.
  • The FDNY thus requires its employees to receive the COVID-19 vaccine as an employment qualification during a rapidly changing global pandemic.
  • Additionally, given the close proximity with which firefighters interact with one another while on duty, in their fire stations and fire houses, the City has a significant interest in ensuring that firefighters have the ability to carry out their task of protecting the public by preventing the transmission of the Coronavirus among its employees.
  • The Court recognizes the sacrifices firefighters and EMT employees have made to protect the public, especially over the course of the COVID-19 pandemic.
  • Our nation is indebted to their efforts and sacrifices. However, the Court has the difficult task of balancing the needs of the vast majority against the concerns of a few, and here, the public health and safety concerns far outweigh the concerns of Plaintiffs.
  • All of us have been navigating unchartered waters over the course of the pandemic, including health and government officials, who have been tirelessly pursuing and implementing the best means to provide for the health and safety of all.
  • Ultimately, “it is up to local government, ‘not the courts, to balance the competing public health and business interests[,]'” and here, the New York City government and the FDNY have done so in issuing and enforcing the vaccination requirement for employees of the FDNY.
  • Accordingly, Plaintiffs’ motion for a temporary restraining order and a preliminary injunction is DENIED.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
x

Check Also

NY Appeals Court Upholds Staffing as Bargainable for Firefighters

The Appellate Division of the New York Supreme Court has ruled that minimum staffing is a bargainable subject that relates to the safety of firefighting personnel, not an illegal job-security clause. The case involves an effort by the City of Ogdensburg to block the grievance arbitration of the city’s unilateral reduction in shift staffing for the Ogdensburg FD.

Fired Business Manager Sues Ohio Fire Department

A former business manager for an Ohio fire department, has filed suit claiming she was terminated on account of her gender and retaliated against for consulting an attorney. Deborah Roche filed suit today against the Munson Fire Department, Inc. in US District Court for the Northern District of Ohio.