In Almodovar v. The City of New York, No. 150953/2023, 2024 WL 1806059 (N.Y. Sup Ct, New York County Apr. 25, 2024), the court dismissed plaintiff’s claims of religion-based discrimination arising from the employer’s Covid-19 vaccine mandate.
From the decision:
With respect to religious discrimination, Plaintiff’s bare bones complaint contains few factual allegations to support his claims, and instead relies on legal conclusions that Plaintiff was constructively terminated because of his faith, was entitled to a reasonable accommodation, or that the City’s process for handling accommodation requests related to the vaccine mandate, including Plaintiff’s request, did not meet the requirements outlined in the NYCHRL concerning cooperative dialogue.
To plead a cause of action for employment discrimination under the NYSHRL, Plaintiff must allege: (1) he is a member of a protected class, (2) he was qualified to hold the position, (3) that he was terminated from employment or suffered adverse employment action, and (4) that the termination or adverse employment action occurred under circumstances giving rise to an inference of discrimination (Harrington v City of New York, 157 AD3d 582, 584 [1st Dept 2018]). For the purposes of a motion to dismiss, Plaintiff’s allegation that he was employed by the NYPD for sixteen and a half years without professional penalization or suspension is sufficient to plead that he had an employment relationship and that he was qualified to hold the position. Plaintiff has also sufficiently pled that he is a member of a protected class, and he was constructively discharged for failure to comply with the vaccine mandate (NYSCEF Doc No. 1, verified complaint ¶¶ 1, 34).
However, with respect to the final element, Plaintiff pleads only that “when he refused to get vaccinated, the NYPD constructively terminated his employment” (id. ¶ 35). No additional facts are alleged that give rise to an inference of religious discrimination. Plaintiff does not advance any facts regarding the period after the denial of his reasonable accommodation request and before the constructive termination to show that the termination was discriminatory or an act of retaliation, nor does he allege any remarks or actions by decisionmakers to show discriminatory intent (Brown v City of New York, 188 AD3d 518, 519 [1st Dept 2020]; Whitfield-Ortiz v Dep’t of Educ. of City of New York, 116 AD3d 580, 581 [1st Dept 2014]. Plaintiff also doesn’t draw any connection between his religion as a “devout Christian” and his alleged constructive termination (see Currid v The City of New York, 2024 NY Slip Op 30222[U], *2 [Sup Ct, NY County 2024][“[i]n his verified complaint, Plaintiff does not set factual allegations regarding a conflict between the vaccine mandate and his bona fide religious beliefs”]). Accordingly, Plaintiff has not pled facts that give rise to an inference of discrimination, and Plaintiff’s legal conclusions are insufficient to state a cause of action under the NYSHRL.
Under the NYCHRL, it is unlawful discriminatory practice “for an employer or an employee or agent thereof, because of the actual or perceived . . . creed . . . to discharge from employment such person or . . . to discriminate against such person in compensation or in terms, conditions or privileges of employment” (Administrative Code of City of NY § 8-107[1][a]). The elements of a discrimination claim under the NYCHRL largely mirror the NYSHRL, except that Plaintiff does not need to plead that he suffered an adverse employment action, only that he was treated differently than other employees under circumstances giving rise to discrimination (Herrington v Metro-N. Commuter R. Co., 118 AD3d 544, 544 [1st Dept 2014]; Askin v Dep’t of Educ. Of City of New York, 110 AD3d 621, 622 [1st Dept 2013]). With respect to the treatment of other employees, Plaintiff alleges only that “many other workers were routinely allowed to work wearing masks or taking weekly tests” (NYSCEF Doc No.1, verified complaint ¶ 25). Plaintiff does not allege who these workers were, whether they hold the same position and title as Plaintiff, whether they applied for reasonable accommodation, or whether they shared the same faith as Plaintiff (see Thior v Jetblue Airways Corp., 2021 NY Slip Op 31818[U], *3 [Sup Ct, NY County 2021][similarly situated employees have a common employer, the same supervisor, the same performance evaluation and disciplinary standards, and were engaged in the same work]). Moreover, and fatal to Plaintiff’s claim, is the absence of any facts that suggest Plaintiff’s religion was a motivation to constructively terminate him (Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 202 [1st Dept 2015][“the question is whether that action was motivated, in whole or in part, by . . . discrimination”]). Accordingly, Plaintiff has not pled facts sufficient to show that he was treated differently than others similarly situated. In short, Plaintiff does not advance any facts that show that Plaintiff’s constructive termination was motivated by his religion rather than his status as unvaccinated. Thus, Plaintiff’s first cause of action is dismissed as untimely and for failure to state a cause of action.
The court further dismissed plaintiff’s failure to retaliation claim, noting that plaintiff “alleges only that he applied for a reasonable accommodation because he is created in God’s image and the accommodation was denied because of undue hardship” but “does not advance any facts that show how his belief conflicts with the vaccine mandate.”