COVID-19 vaccination objectors lose civil rights claim

In this COVID vaccination case, Department of Education employees sue the City of New York after they refused the vaccination and an arbitrator sided with DOE, resulting in the termination of plaintiffs' employment. The Court of Appeals affirms and the case is over.

The case is Broecker v. New York City Department of Education, a summary order issued on November 13. A multitude of plaintiffs claim the DOE violated due process in adopting procedures for enforcing the vaccine mandate that led to their dismissals. The parties agreed to binding arbitration after the labor unions and the City were unable to reach an agreement on the terms of the vaccine mandate. Hence the arbitrator's ruling. The Court of Appeals (Raggi, Walker and Sullivan) says:

The arbitration awards (1) established a process for requesting religious and medical exemptions and accommodations and appealing adverse determinations; (2) provided options for employees to voluntarily separate from service with certain compensation benefits or to elect an extended leave without pay (“LWOP”) until September 5, 2022, during which period they would maintain health benefits; and (3) authorized the DOE to unilaterally separate unvaccinated employees who, as of December 1, 2021, had neither obtained an approved exemption or accommodation, nor opted for separation or extended LWOP.

The problem, as the Court of Appeals sees it, is that the lawsuit does not clarify how this violates due process. While plaintiffs repeatedly assert that they were suspended and fired without due process, "the repetition of a legal conclusion does not state a claim." That's the rule in Ashcroft v. Iqbal, the landmark Supreme Court ruling from 2009 that now guides all motions to dismiss under Rule 12. You have to put some meat on those bones. 

Plaintiffs lose because they got pre-deprivation process through notice of the vaccine mandate, their ability to seek medical and religious exemptions and appeals, their placement on leave without pay, and their opportunities to respond to the City's claims against them. The arbitration process, meanwhile, provided the plaintiffs with expedited review of their exemptions and accommodations. As for post-deprivation process, the plaintiffs were able to file an Article 78 petition in state court. The Second Circuit has held in the past that Article 78 is a proper remedy for the deprivation of certain property interests, including government employment. With pre- and post-deprivation procedures like this in place, there is no due process claim.

How do plaintiffs get around this? They argue that the unions' decisions to submit to arbitration violated the Civil Service Law and that only school boards have the authority to unilaterally resolve union impasses. Not so, says the Court of Appeals, because (1) the Civil Service Law says nothing about whether union and school districts may agree to enter arbitration, and (2) when minimal due process rules are in place, compliance with state law is not an issue.