UPDATE: The City of New York files a Notice of Appeal of the DiCapua Case
All relief to any of the Petitioners is put on hold.
On February 11, 2023, Attorney Sujata Gibson filed a Petition in Staten Island Supreme Court for 16 Petitioners who had been denied religious exemptions to getting vaccinated with the COVID vaccine. Attorney Gibson asked the Judge, Ralph Porzio, for the following relief (copied as written in the Petition):
“1. This is a hybrid action for declaratory judgment, permanent injunctive relief, damages, costs, and attorneys’ fees, alleging a continuing pattern of discriminatory inflicted in violation of the New York State Human Rights Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”) and Article 78 of the Civil Practice Law and Rules (“CPLR”).
2. Petitioners-Plaintiffs (“Petitioners”) are school principals, teachers, and other educators with sincerely held religious beliefs against COVID-19 vaccination who were terminated or otherwise adversely impacted by Defendants’ failure to accommodate them and Teachers for Choice, an advocacy organization made up of educators and parents concerned with informed consent and lawful accommodation policies. Petitioners bring this Petition as a proposed class action on behalf of all similar situated New York City Department of Education employees and contractors denied reasonable religious accommodation from the COVID-19 vaccine mandate.”
“15. The legal issues here are not complex. Respondents’ actions are blatantly violative of the most basic commands of New York law.
16. The New York Constitution, adopted twelve years before the United States Constitution, proclaims that “[t]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind.” N.Y. CONST. art. I, § 3.
17. These Constitutional protections were specifically enacted to end forever the then-common practice of jailing, firing, and even killing dissidents, religious minorities, and so-called heretics, whose views and practices deviated from majority church orthodoxy. ”
Also in the Petition Attorney Gibson wrote that the Petitioners filed their state law claims in Federal Court on January 11, 2022 and on August 30, 2022 the district court declined to exercise supplemental jurisdiction and dismissed the federal claims.
On September 6, 2023 Judge Porzio made his decision. See all the papers in the case:
Index No. 85035/2023 – Richmond County Supreme Court
Judge: Ralph Porzio
Specifically, Porzio Ordered:
“1.ORDERED that Petitioners· motion to certify this action as a class action is denied;
2. ORDERED that those Portions of the Petition seeking relief under the Constitution of the State of New York are denied;
3. ORDERED that the Petition is denied as to Petitioners William Castro, Joan Giammarino, Carolyn Grimando, Benedict LoParrino, Amaryllis Ruiz-Torros, Natasha Solon, and Teachers for Choice.
4. ORDERED that the Petition is granted in that Petitioners Stephanie Dicapua, Michael Kane, Margaret Chu, Heather Clark, Sasha Delgado, Robert Gladding, Nwakaego Nwaifejokwu, Ingrid Romero, Trinidad Smith, and Dennis Strk are entitled to a religious exemption from the Vaccine Mandate;
5. ORDERED that the Petitioners referenced in #4 above’s terminations from the DOE are hereby annulled;
6. ORDERED that the Petitioners referenced in #4 above are to be immediately reinstated to full employment status within 1he DOE;
7. ORDERED that the Petitioners referenced in #4 above are entitled to back pay in salaries, benefits, pensions, and seniority, from the dates on which they were each initially placed on LWOP;
8. ORDERED that an award of attorney’s fees is granted to the Petitioners referenced in #4 above; and
9. ORDERED that the Petitioners referenced in #4 above are directed to submit a proposed order and judgment consistent with this decision on or before October 6, 2023. Respondents are directed to file any opposition to the order by October 27, 2023.”
Administrative remedies are actions that you take that are allowed by contract or workplace policies and give you the relief you want. Judges like to see that Petitioners and Plaintiffs do everything they can do to get the relief they want before suing in Court.
Judge Porzio ordered that 10 Petitioners (Petitioners Stephanie Dicapua, Michael Kane, Margaret Chu, Heather Clark, Sasha Delgado, Robert Gladding, Nwakaego Nwaifejokwu, Ingrid Romero, Trinidad Smith, and Dennis Strk) are entitled to a religious exemption from the Vaccine Mandate; reinstated back to work and gave them their back pay in salaries, benefits, pensions, and seniority, from the dates on which they were each initially placed on LWOP:
“this Court finds no rational basis for the seemingly blanket denial of any religious exemption to all classroom teachers found within the Panel’s reasoning. As this Court articulated in its decision in Rivicci v New York City Fire Dept., “[h]indsight is a powerful tool. Being vaccinated does not prevent an individual from contracting or transmitting Covid-19.” 2022 NY Slip Op 34070(U) (Sup Ct, Richmond County 2022, lndex No. 85131/2022). The Panel admits in their denial that the population of students within the DOE was “primarily unvaccinated.” This Court sees no rational basis for not allowing unvaccinated classroom teachers in amongst an admitted population of primarily unvaccinated students. As such, the decision to summarily deny the classroom teachers amongst the Panel Petitioners based on an undue hardship, without any further evidence of an individualized analysis, is arbitrary, capricious, and unreasonable. As such, each classroom teacher amongst the Panel Petitioners is entitled to a religious exemption from the Vaccine Mandate”.
The Judge denied the Petitioners’ motion to certify this action as a class action, writing (p. 16): ” …the Petitioners are not representative of the class they seek to certify.”
Porzio also denied Petitioners Giammarino, Grimando, LoParrino, and Solon any relief:
“The Petitioners are correct that the rule regarding exhaustion of administrative remedies is not binding when an individual challenges the constitutionality of an agency’s actions. See Watergate II Apts. v Buffalo Sewer Aufh., 46 N.Y.2d 52, 57 (1978). However, as slated earlier, such constitutional relief was provided by order of the Second Circuit Motions Panel in requiring the Citywide Panel to provide “fresh consideration” to the Plaintiff applicants and the record before this Court demonstrates that DOE applicants outside of the Kane Plaintiffs at the time of the Motion Panel’s November 2021 order received review from the Citywide Panel. Therefore, as to Petitioners Giammarino, Grimando, LoParrino, and Solon, the Petition is hereby denied. ”
Porzio awarded Attorney’s fees to the 10 Panel Petitioners.
Will this decision be appealed?
It looks like the City has not decided, according to their latest submission to the Court of Appeals in the NYFRL-Kane-Keil Case:
So everyone will have to wait 30 days to find out.
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice