Lynch v. The Department of Education of the City of New York et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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x
REPORT AND
RECOMMENDATION
24-CV-7795
(Gujarati, J.)
(Marutollo, M.J.)
CORRINE LYNCH,
Plaintiff,
v.
THE DEPARTMENT OF EDUCATION OF THE CITY
OF NEW YORK, MELISSA AVILES-RAMOS,
Chancellor, and KATHERINE RODI, Director of
Employee Relations,
Defendants.
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JOSEPH A. MARUTOLLO, United States Magistrate Judge:
Pro se Plaintiff Corrine Lynch filed this action against Defendants the Department of
Education of the City of New York (“DOE”), DOE Chancellor Melissa Aviles-Ramos,1 and DOE
Director of Employee Relations Katherine Rodi (collectively, “Defendants”), alleging that DOE
terminated Plaintiff’s employment due to “her religious beliefs and refusing the [COVID-19]
vaccine.” 	Dkt. No. 1 ¶¶ 4, 21. 	Specifically, the Complaint—liberally construed—asserts the
1 Plaintiff named former DOE Chancellor David Banks as a Defendant in the Complaint. On January 1,
2025, however, Melissa Aviles-Ramos succeeded Banks as DOE Chancellor. See Mayor Adams Announces
Appointment of Melissa Aviles-Ramos as Next Chancellor of New York City Public Schools System, N.Y.C.
Pub. 	Schs. 	(Sep. 	25, 	2024), 	https://www.schools.nyc.gov/about-
us/news/announcements/contentdetails/2024/09/25/mayor-adams-announces-appointment-of-melissa-
aviles-ramos-as-next-chancellor-of-new-york-city-public-schools-system. Accordingly, under Rule 25(d)
of the Federal Rules of Civil Procedure, Chancellor Aviles-Ramos is automatically substituted for Banks as
a named defendant. See Fed. R. Civ. P. 25(d) (permitting automatic substitution of a party who is a public
official sued in his official capacity when the public official “ceases to hold office” while a suit is pending);
Fatima v. Aviles-Ramos, No. 21-CV-5610 (LTS), 2025 WL 815343, at *1 (S.D.N.Y. Mar. 13, 2025) (“At
the outset of the above-captioned case, Meisha Porter was the Chancellor of the DOE; today, Melissa Aviles-
Ramos is the Chancellor. Because Plaintiffs bring this action against the Chancellor of DOE in her official
capacity . . . , Ms. Porter’s ‘successor is automatically substituted as a party.’” (quoting Fed. R. Civ. P.
25(d))). Indeed, the Complaint alleges no personal involvement by the DOE Chancellor. Dkt. No. 1 ¶ 7
(alleging the DOE chancellor oversees “the NYC system of public schools located throughout all five (5)
boroughs of the City of New York”). Further, Plaintiff only served former Chancellor Banks in his official
capacity. See Dkt. No. 9.
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following causes of action: (1) religious discrimination under the Free Exercise and Establishment
Clauses of the First Amendment (Dkt. No. 1 ¶¶ 28-41); (2) failure to reasonably accommodate
Plaintiff’s sincerely held religious beliefs under 42 U.S.C. § 1983, the New York State Human
Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights
Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8-502(a) et seq. (id. ¶¶ 42-50); (3) violation of the
Fourteenth Amendment’s Equal Protection Clause (id. ¶¶ 51-56); (4) violation of the Fourteenth
Amendment’s Due Process Clause (id.); (5) fraud in the inducement (id. ¶¶ 57-69); (6) breach of
the implied covenant of good faith and fair dealing (id.); and (7) violations of New York Education
Law §§ 3020 and 3020-a for failure to provide Plaintiff a hearing before termination of
employment (id. ¶¶ 59-60). 	The Complaint seeks Plaintiff’s reinstatement, backpay, an
opportunity to amend the Complaint, and other just and proper relief. Id. at 20-21.
Before the Court, on a referral from the Honorable Diane Gujarati, United States District
Judge, is Defendants’ motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). 	Dkt. No. 37; see also Order dated Aug. 6, 2025. 	For the reasons set forth below, the
undersigned respectfully recommends that Defendants’ motion to dismiss be granted in part and
denied in part.
I. 	Relevant Background
A. 	Relevant History of the DOE Vaccine Mandate
Plaintiff alleges that the DOE wrongfully terminated her employment as a New York City
public school teacher because Plaintiff did not obtain a COVID-19 vaccine due to her “sincere
religious beliefs that prohibit her from getting vaccinated,” in violation of the DOE’s vaccination
mandate (“DOE Vaccine Mandate”). 	Dkt. No. 1 ¶ 14; see also Order of the Commissioner of
Health and Mental Hygiene Revising the Effective Date for Required COVID-19 Vaccination of
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Department of Education Employees, Contractors, Visitors and Others, N.Y.C. (Sep. 28, 2021),
https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-vaccination-requirement-doe-
3.pdf (requiring “DOE staff, charter school staff, and individuals who work in-person in a DOE
school setting or DOE building . . . to provide proof of vaccination” of COVID-19). 	On February
10, 2023, Mayor Eric Adams ended the “COVID-19 vaccine mandate and made it voluntary.”
Dkt. No. 1 ¶ 24; see also With Over 96 Percent of City Workers Fully Vaccinated, Mayor Adams
Announces COVID-19 Vaccination Will Become Optional for City Workers, N.Y.C. (Feb. 6, 2023),
https://www.nyc.gov/mayors-office/news/2023/02/with-96-percent-city-workers-fully-
vaccinated-mayor-adams-covid-19-vaccination/.
The DOE Vaccine Mandate has been subject to extensive litigation. As Judge Natasha C.
Merle recently summarized,
The constitutionality of the DOE’s Vaccine Mandate has been subject to vigorous
challenge and judicial review in this Circuit.
The Vaccine Mandate was first issued on August 24, 2021. [Kane v. DeBlasio
(“Kane I”), 19 F.4th 152, 159 (2d Cir. 2021)]. On September 1, 2021, the United
Federation of Teachers (“UFT”) filed a formal objection to the Vaccine Mandate
because it did not provide for any medical or religious accommodations. Id. at 160.
The UFT and the City entered arbitration, and on September 10, 2021, an
independent arbitrator issued an arbitration award (“Arbitration Award”) setting
forth a process and standards for determining, among other things, religious
accommodations to the Vaccine Mandate. Id. Pursuant to the Arbitration Award,
religious accommodation requests were to be denied “where the leader of the
religious organization has spoken publicly in favor of the vaccine, where the
documentation is readily available (e.g., from an online source), or where the
objection is personal, political, or philosophical in nature,” and that requests were
to be “considered for recognized and established religious organizations.” 	Id. A
group of plaintiffs whose religious accommodation requests were denied under the
Arbitration Award sued and sought preliminary injunctions, which were denied. Id.
at 158, 160-62. Plaintiffs appealed the denials, and the Second Circuit considered
the appeal in Kane I. See 19 F.4th 152 (2d Cir. 2021) (per curiam). In Kane I, the
Second Circuit first affirmed the district court’s finding that the plaintiffs were
unlikely to establish that the Vaccine Mandate itself was facially unconstitutional.
Id. at 158. Second, the Court reversed the district court’s findings that the plaintiffs
were unlikely to succeed on “as-applied” challenges to the Vaccine Mandate and
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found that the standards articulated by the Arbitration Award likely violated the
First Amendment as applied to the plaintiffs in that case. Id. at 167.
Following 	Kane 	I, 	the 	City 	established 	a 	City 	of 	New York 	Reasonable
Accommodations 	Appeals 	Panel 	(“Citywide 	Panel”) 	to 	review 	religious
accommodation requests that had been rejected under the standards of the
Arbitration Award. Keil v. City of New York, No. 21-3043-cv, 2022 WL 619694, at
*1 (2d Cir. Mar. 3, 2022) (summary order) (“Keil”). Following denials of religious
accommodation requests by the Citywide Panel, certain plaintiffs contested the
constitutionality of the Citywide Panel’s new process and determinations, and again
sought a preliminary injunction, which was denied. Plaintiffs appealed the denial,
and the Second Circuit affirmed in Keil v. City of New York. Id. at *4. Following
Keil, the plaintiffs filed a consolidated amended complaint in the Southern District
of New York which challenged the Citywide Panel and again challenged the
Vaccine Mandate. The consolidated amended complaint was eventually dismissed
in the district court, and plaintiffs again appealed.
The Second Circuit considered this appeal, combined with another case arising out
of the Eastern District of New York, in New Yorkers for Religious Liberty, Inc. v.
New York, 125 F.4th 319, 325 (2d Cir. 2024) (“NYFRL”). In NYFRL, the Second
Circuit again found that the “City’s Vaccine Mandate, in all its iterations, was
neutral, generally applicable, and facially constitutional under the Free Exercise
Clause.” 	Id. at 330. After finding that the Vaccine Mandate, combined with the
procedures utilized by the Citywide Panel, was facially constitutional, the Court
considered whether the application of the Vaccine Mandate to each plaintiff also
passed constitutional muster. See id. at 330-32. In so doing, the court considered
whether the Citywide Panel properly denied religious accommodation requests by
considering the allegations presented by each plaintiff. See id. at 333-35.
In NYFRL, the Court upheld the lower court’s findings that some plaintiffs whose
religious accommodation requests had been subject to review by the Citywide Panel
had failed to state a claim because they did not “make[ ] a more-than-conclusory
allegation that” the reason for the denial was erroneous or pretextual. Id. at 333-
34. However, two other plaintiffs were found to have stated cognizable as-applied
First Amendment challenges—the first was a plaintiff who elected to take the
vaccine following denial of her original religious exemption request and so never
received additional review by the Citywide Panel, see id. at 334-35, and another
plaintiff who alleged that the Citywide Panel denied her religious accommodation
request because it improperly found her religious objection “too idiosyncratic rather
than . . . not sincerely held or non-religious in nature.” Id. at 335.
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Barrett v. Dep’t of Educ. of N.Y., No. 24-CV-574 (NCM) (RML), 2025 WL 1786910, at *7-8
(E.D.N.Y. June 26, 2025). 2
It is against this backdrop that the undersigned addresses Plaintiff’s claims.
B. 	The Complaint
The following facts are derived from the Complaint, pro se Plaintiff’s opposition to
Defendants’ motion to dismiss, and any documents attached to either of them. See Lynch v. City
of New York, 952 F.3d 67, 79 (2d Cir. 2020); see also Sakon v. Johnson, 724 F. Supp. 3d 31, 36 (D.
Conn. 2024) (“Consistent with the liberal reading of a pro se plaintiff’s complaint, ‘[a] district
court deciding a motion to dismiss may consider factual allegations made by a pro se party in his
papers opposing the motion.” (citing Walker v. Schult, 717 F.3d 119, 124 n.1 (2d Cir. 2013)). All
facts alleged by Plaintiff are assumed to be true for purposes of deciding the motion to dismiss and
are construed in the light most favorable to Plaintiff as the non-moving party. Gomez v. Nat’l Fin.
Network, Inc., No. 20-CV-1968 (GRB) (AKT), 2021 WL 8084337, at *1 (E.D.N.Y. Aug. 2, 2021)
(citing Tanvir v. Tanzin, 894 F.3d 449, 458 (2d Cir. 2018)).
Plaintiff served as a tenured public school teacher in New York City from 2011 to 2022.
Dkt. No. 1 ¶¶ 5, 13, 21. 	Plaintiff had “an impeccable reputation and record.” 	Id. ¶ 5. 	By all
accounts, Plaintiff was a UFT member. Id. at 73.3
On September 10, 2021, Arbitrator Martin F. Scheinman issued the above-described
Arbitration Award, which set forth the process for DOE employees to obtain a religious exemption
from the DOE Vaccine Mandate. See id. ¶ 15; id. at 26-39; see also Barrett, 2025 WL 1786910,
at *7-8.
2 NYFRL is handled by this Court, and at the time of writing of this Report and Recommendation, litigation
is ongoing. See NYFRL, No. 22-CV-752 (DG) (CHK).
3 Page citations are to ECF-stamped pages unless otherwise noted.
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On or about September 21, 2021, Plaintiff applied for a reasonable accommodation on
religious grounds with the DOE. Dkt. No. 1 ¶ 14; id. at 22 (confirming receipt of online request
for reasonable accommodation).
In her request for a religious exemption to the DOE Vaccine Mandate, Plaintiff states that
she was “brought up as a Christian[].” Id. at 23. Plaintiff states that “[s]ome Christian principles
remain” with her, but that she “did not truly understand why [she] adhered to the form of
Christianity [her] parents introduced [her] to.” 	Id. 	She believes that “religion needs to be an
integral part of life, not just a few hours on a Sunday.” Id. She believes that “there is evidence
that Jesus Christ did not necessarily want his teachings to become a standardized type of religion,
which is precisely what, at least, Catholicism has done.” 	Id. 	She looks to “other religious
principles to live a life-supporting [sic] the essence of [her] understanding of Christ.” 	Id. 	She
notes that “Eastern faiths (specifically Buddhism) call out to [her] as suitable for how [she] live[s]
and worship[s].” Id.
She alleges that her sincere religious beliefs prohibit her from being vaccinated with the
COVID-19 vaccine. Id. at 23-24 (“Do I believe in medical interventions? I think whatever God
sends my way, I will see His help for solutions and guidance. And my decisions will adhere to my
personal belief in God. Though I turn my back on immunization, I do not turn my back on all
‘modern’ medicine and its practices and philosophies.”). 	She noted that she and her child have
been vaccinated in the past. Id. at 24. But “turning [her] back on vaccines has reached [her] in
[God’s] word,” which Plaintiff submits “defines faith and defines [hers].” Id. Given her personal
religious beliefs, she sought an exemption from the DOE Vaccine Mandate. See id.
Plaintiff also submitted a supplemental letter dated September 13, 2021, from Cliff
Kretkowski, her former pastor at the Valley Stream Church of the Nazarene, describing the
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sincerity of Plaintiff’s religious beliefs. Id. at 25 (“She has attended Bible Studies to deepen her
relationship with God, and I have been a mentor to her through many of life’s challenges. 	Her
relationship with God has been unique and transforming and it is her and her[]s alone.”). 	The
pastor noted that Plaintiff was “baptized in the church when she was 21 years old,” was married
in the church, and baptized her son in the church. Id.
On or about September 24, 2021, DOE denied Plaintiff’s religious exemption request:
We have reviewed your application and supporting documentation for a religious
exemption from the [DOE Vaccine Mandate]. Your application has failed to meet
the 	criteria 	for 	a 	religious 	based 	accommodation. 	Per 	the 	Order 	of 	the
Commissioner of Health, unvaccinated employees cannot work in a [DOE]
building or other site with contact with DOE students, employees, or families
without posing a direct threat to health and safety. We cannot offer another worksite
as an accommodation as that would impose an undue hardship (i.e. more than a
minimal burden) on the DOE and its operations.
Id. at 40; see also id. ¶ 16 (alleging that the denial occurred on September 25, 2021).
On October 5, 2021, after Plaintiff was already placed on Leave Without Pay (“LWOP”),
Plaintiff attempted to reapply for a reasonable accommodation “with updated documentation, but
was not permitted by the Defendants.” Id. ¶ 18; id. at 42.4
On November 28, 2021, the Second Circuit issued its decision in Kane I, 19 F.4th 152.
Dkt. No. 1 ¶ 19; id. at 43-44. On November 29, 2021, Plaintiff “again attempted to reapply for a
[reasonable accommodation] but she was not provided any option to do so in the DOE portal.” Id.
¶ 20.
On November 30, 2021, Plaintiff wrote the DOE an e-mail, states that she has “reasons to
believe that [her] religious . . . exemption was wrongly denied by the DOE,” she reserves all her
4 It is appropriate to consider “materials outside the complaint to the extent that they are consistent with the
allegations in the complaint, . . . including ‘documents that a pro se litigant attaches to his opposition
papers.’” Lopez v. Cipolini, 136 F. Supp. 3d 570, 579 (S.D.N.Y. 2015) (citations omitted).
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rights to challenge the decision, and she maintains her “right to sue for wrongful termination.” Id.
at 41; id. ¶ 17.
Towards the end of January 2022 and early February 2022, Plaintiff received several
notices of termination effective on or about February 18, 2022. See id. at 55 (termination notice
dated Jan. 31, 2022, setting forth her termination is effective February 11, 2022); id. ¶ 21 (alleging
Plaintiff received a termination notice on Feb. 8, 2022, setting forth her termination on February
18, 2022); id. at 52 (termination notice dated Feb. 15, 2022, setting forth her termination date of
February 11, 2022). 5 On or about February 9, 2022, the UFT sent Plaintiff a blank form to request
a hearing pursuant to New York Education Law § 3020-a, which Plaintiff completed and submitted
to “preserve her rights.” Id. ¶ 21; id. at 53. Plaintiff does not allege that she was served with §
3020-a charges.
On April 28, 2022, a UFT employee informed Plaintiff that the DOE had placed her
personnel file and fingerprints in the “Problem Code” database, which means she would not be
able to work in a position for the DOE due to “misconduct/insubordination.” Id. ¶ 23; id. at 73 (e-
mail from UFT employee stating that “[t]he problem code was added to all employees who were
placed on 2VM vaccine mandate leave”). Plaintiff alleges that “Defendant[] Katherine Rodi has
been Director of [DOE Office of Personnel Investigations (“OPI”)] and in charge of placing
problem codes on personnel files since 2012.” 	Id. ¶ 23; see also id. ¶ 3 (alleging Plaintiff was
5 Taking all facts alleged by Plaintiff to be true for the purposes of deciding the motion to dismiss and
construing the facts in the light most favorable to Plaintiff, the undersigned treats her termination date
effective February 18, 2022. As discussed below, it is immaterial whether her termination is February 11
or February 18, 2022, as Plaintiff’s NYSHRL and NYCHRL claims are time-barred either way.
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“placed on a ‘problem code’ by Defendant Katherine Rodi, Director of the Office of Personnel
Investigations which oversees the Problem Code”).6
Plaintiff 	alleges 	that 	“other 	teachers 	similarly 	situated 	were 	granted
exemption/accommodations for their religious beliefs which prohibited [them from] getting [the]
vaccine.” Dkt. No. 1 ¶ 29. She also alleges that DOE gave “religious-based accommodations to
other employes similarly situated, and plac[ed] unvaccinated employees on reassignment (‘rubber
rooms’) in Defendants’ district offices and at home on full salary.” Id. ¶ 2; see, e.g., id. ¶¶ 38, 46,
48, 49, 52.
C. 	Procedural Background
Plaintiff commenced this action by filing the Complaint on November 8, 2024. Dkt. No.
1.7 Defendants were served on December 19, 2024. Dkt. No. 9.
On March 6, 2025, Plaintiff filed the first “notice of motion for recusal or disqualification”
of the undersigned. Dkt. No. 19. On March 7, 2025, the Court denied Plaintiff’s Motion. Dkt.
No. 20. 	On March 10, 2025, Defendants filed a letter-motion for a pre-motion conference in
anticipation of their motion to dismiss. Dkt. No. 21. On March 11, 2025, the Court held an initial
status conference and set discovery deadlines. Minute Entry dated Mar. 11, 2025. On March 20,
2025, the Court held that the pre-motion conference is unnecessary, and directed the parties to
submit a proposed briefing schedule. Order dated Mar. 20, 2025.
6 Plaintiff references a June 27, 2022 decision by Arbitrator Scheinman regarding eighty-two employees
who were placed on leave without pay with benefits for failing to comply with the DOE Vaccine Mandate
when the employees assert they were “in fact vaccinated.” Dkt. No. 1 ¶ 22; id. at 59-72. Plaintiff, however,
never claimed to be vaccinated with the COVID vaccine. Id. ¶ 14.
7 The original Complaint was unsigned. Dkt. No. 1 at 21. On November 20, 2024, Plaintiff filed a notice
containing a signed copy of the Complaint. Dkt. No. 6. For the sake of clarity, the Court refers to the
Complaint as Dkt. No. 1 herein.
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After several extensions of the briefing schedule (Dkt. Nos. 24, 26, 32, 34), Defendants
filed the fully briefed motion to dismiss on July 14, 2025. Dkt. Nos. 37-41. On July 29, 2025,
Defendants filed a motion to stay discovery (Dkt. No. 45), which Plaintiff opposed (Dkt. No. 47).
On July 31, 2025, the Court stayed discovery. Order dated July 31, 2025. 	On August 6, 2025,
Judge Gujarati referred the motion to dismiss (Dkt. No. 37) to the undersigned for a report and
recommendation. See Order dated Aug. 6, 2025.
On September 12, 2025, Plaintiff filed a “letter motion to disqualify [the undersigned] from
this case and Plaintiff’s objection to referral for a report and recommendation.” 	Dkt. No. 50
(capitalized in original). 	After multiple court orders, on September 22, 2025, Defendants
responded to Plaintiff’s September 12, 2025 motion. 	Dkt. No. 53. On the same day, the Court
denied sanctions against Defendants, and denied Plaintiff’s September 12, 2025 motion. See Order
dated Sep. 22, 2025.
On September 28, 2025, Plaintiff filed a motion seeking to “supplement [her] motion
requesting the disqualification of [the undersigned] and objecting to [the District Court’s] referral
to him for a R&R.” Dkt. No. 55. On October 10, 2025, the Court construed Plaintiff’s September
28 motion as a motion for reconsideration of the Court’s September 22, 2025 Order denying
disqualification, and denied reconsideration. Order dated Oct. 10, 2025.
On November 10, 2025, Plaintiff filed a letter-motion to Judge Gujarati titled “Clarification
Request Regarding Magistrate Judge’s Denial of Plaintiff’s Disqualification Motion and Referral
for Report and Recommendation,” in which Plaintiff seeks the disqualification of the undersigned
to issue the Report and Recommendation on Defendants’ motion to dismiss. Dkt. No. 57. 8
8 While the November 10, 2025 letter-motion has not been referred to the undersigned, in light of Judge
Gujarati’s referral and the instant Report and Recommendation, the undersigned respectfully recommends
that this motion be denied as moot.
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On November 28, 2025, the Court directed the parties to meet and confer and file a joint
status report in light of the City of New York’s recent policy of reinstating former employees,
including teachers, who were terminated for refusing the COVID vaccine. See Order dated Nov.
28, 2025 (citing Mayor Adams Offers Former Employees Who Were Terminated for Refusing
COVID Vaccine Second Opportunity to Return to City Employment, N.Y.C. (Nov. 5, 2025),
https://www.nyc.gov/mayors-office/news/2025/11/mayor-adams-offers-former-employees-who-
were-terminated-for-refu (setting a deadline for December 5, 2025)). 	On December 3, 2025,
Defendants’ counsel filed the joint letter advising the Court the parties did not reach settlement.
Dkt. No. 59.
II. 	Standard of Review
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 	“A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,
550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly,
550 U.S. at 556). While “detailed factual allegations” are not required, “[a] pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” Id. (quoting Twombly, 550 U.S. at 555). Plaintiff’s factual allegations must also be sufficient
to give the defendant “fair notice of what the . . . claim is and the grounds upon which it rests,”
Twombly, 550 U.S. at 555 (alteration in original) (internal quotations and citations omitted), and
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must show that the court has subject matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 583 (1999); Fed. R. Civ. P. 12(h)(3).
“[T]he court’s task is to assess the legal feasibility of the complaint; it is not to assess the
weight of the evidence that might be offered on either side.” Lynch, 952 F.3d at 75. Determining
whether a complaint states a claim is “a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” 	Iqbal, 556 U.S. at 679. 	The Court must
accept the well-pleaded factual allegations set forth in the complaint as true and draw all reasonable
inferences in favor of the plaintiff but need not “credit conclusory allegations or legal conclusions
couched as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013).
“A document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation and quotations omitted);
see, e.g., McCray v. Lee, 963 F.3d 110, 116 (2d Cir. 2020) (affirming “[a] complaint filed by a
plaintiff pro se is to be construed ‘liberally to raise the strongest arguments [it] suggest[s]’”
(quoting Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013))); Cooke v. Frank Brunckhorst Co.,
LLC, 788 F. Supp. 3d 390, 395 (E.D.N.Y. 2025) (affirming “the Court is mindful that the plaintiff
is proceeding pro se and that the complaint must be ‘liberally construed’ in favor of the plaintiff”
(quoting Coffey v. United States, 939 F. Supp. 185, 189-90 (E.D.N.Y. 1996))); Maynard v.
Comm’r, No. 15-CV-586 (CBA) (LB), 2015 WL 4069356, at *1 (E.D.N.Y. July 1, 2015)
(“pleadings submitted pro se . . . are held to a less stringent standard and must be liberally
construed.”). “District courts must interpret a pro se complaint to raise the strongest claims that it
suggests.” Burton v. Wells Fargo Bank, N.A., 738 F. Supp. 3d 272, 287 (E.D.N.Y. 2024) (quoting
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). 	Moreover, at the pleadings stage of the
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proceeding, “the Court must assume the truth of ‘all well-pleaded, nonconclusory factual
allegations in the complaint.’” 1567 56th St., LLC v. Spitzer, 774 F. Supp. 3d 476, 488 (E.D.N.Y.
2025) (quoting Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010)).
On a motion to dismiss, “courts are constrained in their review to the four corners of the
complaint, the documents attached thereto, those that are integral to the complaint or incorporated
by reference, and those facts or documents of which the court can take judicial notice.” Casey v.
Odwalla, Inc., 338 F. Supp. 3d 284, 293 (S.D.N.Y. 2018) (citations omitted). 	Courts may take
judicial notice of “public documents or matters of the public record,” and “records of
administrative bodies.” Id. at 294 (citations omitted). Pursuant to Federal Rule of Evidence 201,
judicially noticeable facts are those “not subject to reasonable dispute” because they are either
“generally known within the trial court’s territorial jurisdiction,” or “can be accurately and readily
determined from sources whose accuracy cannot be reasonably questioned.” Id. (quoting Fed. R.
Evid. 201(b)).
III. 	Discussion
A. 	Plaintiff’s First Amendment Claims
The First Amendment provides: “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof.” NYFRL, 125 F.4th at 330 (quoting U.S. Const.
amend. I). The First Amendment is incorporated against the states via the Fourteenth Amendment.
Id. (citing Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)). 	“The free exercise of religion
means, first and foremost, the right to believe and profess whatever religious doctrine one desires.”
Id. (quoting Emp. Div. Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 877 (1990)). “This protection,
however, ‘does not relieve an individual of an obligation to comply with a valid and neutral law
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of general applicability.’” Id. (first quoting Kane I, 19 F.4th at 164; and then quoting Smith, 494
U.S. at 879).
Plaintiff alleges that her termination violates the Free Exercise and Establishment Clauses
of the First Amendment of the U.S. Constitution. 	Dkt. No. 1 ¶ 33. 	Plaintiff also alleges that
Defendants failed to make a reasonable accommodation for her sincerely held religious beliefs in
violation of the First Amendment. See id. ¶ 45.
Defendants argue that Plaintiff fails to plausibly plead either a Free Exercise or
Establishment Clause claim under the First Amendment. Dkt. No. 39 at 24-27; Dkt. No. 41 at 7.
Defendants also argue that Plaintiff failed to adequately report her religious beliefs in her request
for accommodation. Dkt. No. 39 at 11. The Court addresses these arguments in turn below.
i. 	Plaintiff Plausibly Alleges As-Applied Free Exercise Clause and
Establishment Clause Challenges Under the First Amendment
“Individuals challenging the constitutionality of a law enforced by the government may
either bring a ‘facial challenge’ or an ‘as-applied’ challenge.” Barrett, 2025 WL 1786910, at *6.
“A ‘facial challenge’ to a rule, regulation, or statute considers only the content of the challenged
law itself, ‘not its application to the particular circumstances of an individual.’” Id. (quoting Field
Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006)). “In contrast, an ‘as-applied’
challenge requires ‘analysis of the facts of a particular case to determine whether the application
of a statute, even one constitutional on its face, deprived the individual to whom it was applied of
a protected right.’” Id. (quoting Field Day, 463 F.3d at 174).
The Complaint is not clear as to whether Plaintiff brings a facial or as-applied challenge
under the First Amendment. The undersigned therefore addresses both types of challenges below.
Ultimately, the undersigned respectfully recommends that to the extent Plaintiff brings a facial
Free Exercise Clause and a facial Establishment Clause challenge to the DOE Vaccine Mandate,
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such claims should be dismissed. But to the extent Plaintiff brings as-applied Free Exercise Clause
and Establishment Clause challenges to the DOE Vaccine Mandate, these claims should survive
Defendants’ motion to dismiss. 9
As background, and as Judge John G. Koeltl recently summarized,
The First Amendment bars the government from “prohibiting the free exercise” of
religion. U.S. Const. amend. I; see [Cantwell, 310 U.S. at 303] (incorporating the
Free Exercise Clause against the states). The Free Exercise Clause “protects an
individual’s private right to religious belief, as well as the performance of (or
abstention from) physical acts that constitute the free exercise of religion.” [Kane
I, 19 F.4th at 163-64]. But this protection “does not relieve an individual of the
obligation to comply with a valid and neutral law of general applicability.” [Smith,
494 U.S. at 879]. 	Thus, “[w]here the government seeks to enforce a law that is
neutral and of general applicability,” the government “need only demonstrate a
rational basis for its enforcement.” Fifth Ave. Presbyterian Church v. City of New
York, 293 F.3d 570, 574 (2d Cir. 2002). Laws that are not neutral towards religion
or generally applicable, however, may survive only if they are narrowly tailored to
advance a compelling government interest. Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U.S. 520, 531-32 (1993).
The Free Exercise Clause does not require religious exemptions to vaccine
mandates. We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 287-88 (2d Cir.
2021). But . . . “if a government entity chooses to offer exemptions to vaccine
mandates, it must do so in a non-discriminatory way.” Chinchilla v. N.Y.C. Police
Dep’t, No. 23-CV-8986 [DEH], 2024 WL 3400526, at *3 (S.D.N.Y. July 12, 2024).
The Court of Appeals for the Second Circuit has laid out a framework for evaluating
challenges to the constitutionality of vaccine mandates with religious exemptions.
In [Kane I], a plaintiff brought facial and as-applied challenges to the vaccine
mandate of the [DOE]. 19 F.4th at 164. The Court of Appeals held that the vaccine
mandate was facially neutral because it applied to “all DOE staff, as well as City
employees and contractors” who worked in DOE schools and thus did not “single
out employees who decline vaccination on religious grounds.” Id. The vaccine
mandate was also generally applicable because it “applie[d] to an entire class of
people.” Id. at 166. Because the mandate was neutral and generally applicable, the
Court 	of Appeals 	applied 	rational-basis review. 	And 	the 	mandate “plainly
9 To the extent Defendants argue that Plaintiff abandoned her First Amendment claim, that argument should
be rejected. 	Plaintiff argued that “Plaintiff demonstrated in her Complaint that she engaged in speech
protected by the First Amendment, namely discussing her religious beliefs.” Dkt. No. 40 at 17. Pro se
Plaintiff’s argument in favor of the First Amendment is sufficient to demonstrate that Plaintiff did not
abandon her First Amendment claims, especially in light of the liberal pleading standards afforded to pro
se plaintiffs. Erickson, 551 U.S. at 94; see also McCray, 963 F.3d at 116.
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satisfie[d]” that standard as a “reasonable exercise of the State’s power to act to
protect the public health.” Id.
By contrast, the Court of Appeals held that the vaccine mandate as applied to the
challengers was subject to strict scrutiny because it was neither neutral nor
generally applicable. Id. at 169. 	The exemption procedures were not neutral
because they allowed examiners to inquire into “the validity of particular litigants’
interpretations” of their religious beliefs. 	Id. at 168. 	Specifically, the DOE’s
exemption standards provided that exemptions should be denied when “the leader
of the religious organization has spoken publicly in favor of the vaccine.” Id. But
denying an applicant’s request for a religious exemption “based on someone else’s
publicly expressed religious views — even the leader of her faith — runs afoul of
the Supreme Court’s teaching that ‘[i]t is not within the judicial ken to question the
centrality of particular beliefs or practices to a faith, or the validity of particular
litigants’ interpretations of those creeds.’” 	Id. at 168 (quoting Hernandez v.
Comm’r, 490 U.S. 680, 699 (1989)).
Carbone v. City of New York, No. 25-CV-2368 (JGK), 2025 WL 3206658, at *3 (S.D.N.Y. Nov.
17, 2025). 	“Rational basis review requires the City to have chosen a means for addressing a
legitimate goal that is rationally related to achieving that goal.” Kane I, 19 F.4th at 166 (citations
omitted).
a. 	Facial Free Exercise Clause Challenge
In light of Kane I and NYFRL, to the extent the Complaint is liberally construed to include
a facial Free Exercise Clause challenge to the DOE Vaccine Mandate, such a claim is subject to
dismissal. At bottom, and as noted above, the Second Circuit has already held that the DOE’s
Vaccine Mandate “‘in all its iterations, [wa]s neutral[,] generally applicable,’ and facially
constitutional under the Free Exercise Clause.” NYFRL, 125 F.4th at 330 (quoting Kane I, 19 F.4th
at 164)). Thus, binding authority requires dismissal of a facial Free Exercise Clause challenge to
the DOE Vaccine Mandate.
b. 	Facial Establishment Clause Challenge
The Establishment Clause prevents the government from enacting laws “that have the
‘purpose’ and ‘effect’ of ‘advancing or inhibiting religion.’” NYFRL, 125 F.4th at 330 (quoting
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Agostini v. Felton, 521 U.S. 203, 222-23 (1997)). As the District Court held in Kane I and the
Second Circuit affirmed, the plaintiffs failed to state a claim for a facial violation of the
Establishment Clause; the court cited the “long history of vaccination requirements in this country
and in this Circuit.” 	Kane v. De Blasio, 623 F. Supp. 3d 339, 359 (S.D.N.Y. 2022) (first citing
Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905) (upholding smallpox vaccination mandate);
then citing Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (“[A parent] cannot claim
freedom from compulsory vaccination for the child more than for himself on religious grounds.
The right to practice religion freely does not include liberty to expose the community or the child
to communicable disease . . . .”); and then citing Phillips v. City of New York, 775 F.3d 538, 543
(2d Cir. 2015) (per curiam) (holding that “New York could constitutionally require that all children
be vaccinated in order to attend public school” and that “New York law goes beyond what the
Constitution requires by allowing an exemption for parents with genuine and sincere religious
beliefs”)), rev’d on other grounds, Kane I, 19 F.4th at 158-59 (affirming the District Court’s finding
that the plaintiffs were unlikely to establish that the DOE Vaccine Mandate itself was facially
unconstitutional, and reversing the District Court’s findings that the plaintiffs were unlikely to
succeed on “as-applied” challenges to the DOE Vaccine Mandate).
Therefore, like the potential facial Free Exercise Clause challenge, to the extent the
Complaint raises a facial Establishment Clause challenge, binding authority warrants its dismissal.
See Kane I, 19 F.4th at 164.
c. 	As-Applied Free Exercise Clause and Establishment Clause
Challenges
To the extent the Complaint is liberally construed to feature as-applied Free Exercise
Clause and Establishment Clause claims, the Second Circuit’s cases in Kane I and NYFRL, as
described above, are instructive. In NYFRL in particular, the Second Circuit determined that two
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of the plaintiffs stated as-applied First Amendment claims. NYFRL, 125 F.4th at 334-36. 10 The
first plaintiff, Natasha Solon, decided to take the COVID-19 vaccine and was reinstated, and did
not receive “fresh review” by the Citywide Panel. Id. at 334. The Second Circuit held that the
action was not moot because Solon sought backpay. Id. The court further held that Solon plausibly
alleged she was “improperly denied” a reasonable accommodation based on her sincere religious
beliefs because “the Arbitration Award Standards under which [that plaintiff] was suspended were
very unlikely unconstitutional” given that the Arbitration Award standards “only allowed
‘exemption requests . . . for recognized and established religious organizations,’ and did not honor
exemptions for those whose ‘religious beliefs were merely personal.’” Id. (quoting Kane I, 19
F.4th at 168)). 	The second plaintiff, Heather Clark, plausibly alleged an as-applied First
Amendment challenge because the Citywide Panel denied her religious accommodation request
due to the “characterization of her religious objection as too idiosyncratic rather than as not
sincerely held or non-religious in nature,” which is “the same constitutional problem in Kane I.”
Id.
Here, as an initial matter, any as-applied Free Exercise Clause and Establishment Clause
claims are not moot because Plaintiff, like plaintiff Solon from NYFRL, is seeking, at a minimum,
backpay from the alleged wrongful termination. 	Dkt. No. 1 at 20-21; id. ¶ 55 (“Plaintiff has
suffered and is entitled to recover compensatory and nominal damages including backpay”);
NYFRL, 125 F.4th at 335 (finding that the District Court “erred by dismissing her claim as moot
when backpay remains an available remedy for her alleged wrongful suspension”).
Further, Plaintiff is similarly situated to both the plaintiffs in Kane I and plaintiff Solon
(described above) in NYFRL. 	The Complaint plausibly alleges that Plaintiff’s claim received
10 The Second Circuit did note, however, that “most of the appellants have . . . failed to state plausible as-
applied claims.” NYFRL, 125 F.4th at 333.
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review under only the Arbitration Award standards, which the Second Circuit has held likely
violates the First Amendment because those standards are not neutral nor generally applicable as-
applied. Kane I, 19 F.4th at 168-69; NYFRL, 125 F.4th at 334. Even though in Kane I, the City
represented that DOE employees “will be granted the same opportunity” as the plaintiffs in Kane
I “to have their religious accommodation requests considered by the central citywide panel” (Kane
I, 19 F.4th at 173), the Complaint and documents incorporated by reference here do not mention
that Plaintiff received any review by the Citywide Panel. 	See generally Dkt. No. 1 ¶ 16 (DOE
denying Plaintiff her reasonable accommodation request based on unconstitutional Arbitration
Award standards); ¶¶ 18, 20 (Plaintiff twice attempted to apply for reasonable accommodation
again after the Second Circuit’s decision in Kane I).
Defendants argue that Plaintiff fails to allege that “she availed herself of [the Citywide
Panel] process, and, indeed, Plaintiff in fact did not appeal to the Citywide Panel.” Dkt. No. 41 at
10. 	That framework, however, puts the cart before the horse, as it is unclear at the motion to
dismiss stage whether the Citywide Panel was even available to Plaintiff. Dkt. No. 1 ¶¶ 16, 18-
20, 21, 23, 24.11
11 Plaintiff appears to argue in her brief that even if the Citywide Panel offered her review, the Citywide
Panel’s denial of the reasonable accommodation request would have been a foregone conclusion. See Dkt.
No. 40 at 5 (“The Citywide Panel . . . denied almost everyone who Appealed [sic] the Scheinman Panel
with a ‘de minimis standard in violation of Groff and Dejoy.”); id. at 10 (arguing that the Citywide Panel
“never really reviewed any religious Appeal and if they did, they still where [sic] an ‘undue burden’ was
never explained”). But at this juncture, it is unclear whether Plaintiff received review by the Citywide Panel
or that the Citywide Panel review was available to her. Second, to the extent Plaintiff is arguing that the
Citywide Panel is a “rubber-stamp” or the process is a “sham,” the Second Circuit has rejected that
argument. See Keil, 2022 WL 619694, at *2 (rejecting plaintiffs’ declarations that allege that the “Citywide
Panel process ‘did not define any criteria or procedural safeguards,’ was a ‘sham process conducted by a
biased panel,’ and resulted in ‘summary auto-generated denials.’ (i.e., the Notices) with ‘no explanation . .
. for why the Plaintiffs were denied.’”); NYFRL, 125 F.4th at 332 (“In fact, contrary to Appellants’
conclusory allegation that the Citywide Panel ‘rubber-stamped’ . . . the previous denials in ‘bad faith,’ . . .
the [Consolidated Amended Complaint] alleges that the Citywide Panel frequently credited the personal
religious beliefs about vaccination held by Appellants of different faiths.” (emphasis in original)). Finally,
to the extent Plaintiff argues the Citywide Panel misapplied the standards in Groff v. DeJoy, 600 U.S. 447,
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Therefore, the undersigned respectfully recommends that Plaintiff’s as-applied First
Amendment claims survive Defendants’ motion to dismiss.
ii. 	Plaintiff Plausibly Alleges a First Amendment Claim that Defendants
Failed to Accommodate Her Sincerely Held Religious Beliefs
As described above, Plaintiff alleges that Defendants failed to reasonably accommodate
her sincerely held religious beliefs in violation of 42 U.S.C. § 1983, NYSHRL, and NYCHRL.
Dkt. No. 1 ¶ 50. 	The undersigned addresses Plaintiff’s Section 1983 claim here; Plaintiff’s
NYSHRL and NYCHRL will be addressed below in Section III.H.
“In order to establish a § 1983 claim for . . . religious discrimination, a plaintiff must
demonstrate that (1) the defendant acted unlawfully under color of state law; and (2) the plaintiff
suffered a denial of her federal constitutional or statutory rights as a result of defendant’s unlawful
action.” Kunik v. N.Y.C. Dep’t of Educ., 436 F. Supp. 3d 684, 692 (S.D.N.Y. 2020), aff’d, 842 F.
App’x 668 (2d Cir. 2021), as amended (Jan. 26, 2021); Crosier v. Town of Berne, No. 25-CV-866
(AMN) (PE), 2025 WL 3551669, at *1 (N.D.N.Y. Dec. 11, 2025) (noting that a plaintiff “must
reference 42 U.S.C § 1983 or 42 U.S.C. § 1988, together with an alleged violation of the First
Amendment, because the First Amendment does not provide a private cause of action to recover
monetary damages.”). “Section 1983 is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred by those parts of the United States Constitution and
federal statutes that it describes.” Hamilton v. City of New York, 563 F. Supp. 3d 42, 59 (E.D.N.Y.
2021) (citations and quotation marks omitted).
468, 470 (2023), the Second Circuit also rejected that argument in NYFRL. See NYFRL, 125 F.4th at 333
(“In order to demonstrate an ‘undue hardship,’ an employer must show that the burden of granting an
accommodation ‘is substantial in the overall context of [the] employer’s business’”) (quoting Groff, 600
U.S. at 468); id. (“For each of these Appellants, the Citywide Panel found that, irrespective of their sincerely
held religious beliefs, their requests presented an ‘undue hardship’ because each individual is a classroom
teacher, who under the present circumstances, cannot physically be in the classroom while unvaccinated
without presenting a risk to the vulnerable and still primarily unvaccinated student population.”).
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“Plaintiff’s religious discrimination [claims] . . . pursuant to Sections 1981 and 1983 ‘are
analyzed in tandem with [Plaintiff’s] Title VII claims because the standards for liability under these
laws are the same.’” 	Id. at 52 (citations omitted)). 	Accordingly, the framework for failure to
accommodate claims are the same under § 1983 and Title VII. Id. at 53 (citing Knight v. Conn.
Dep’t of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001)). Employment discrimination claims are
analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Hamilton, 563 F. Supp. 3d at 52.
“To establish a prima facie case of religious discrimination based on a failure to
accommodate, plaintiffs must show that ‘(1) they held a bona fide religious belief conflicting with
an employment requirement; (2) they informed their employers of this belief; and (3) they were
disciplined for failure to comply with the conflicting employment requirement.’” Id. at 53 (citing
Knight, 275 F.3d at 167); see also Lee v. N.Y.C. Fire Dep’t, No. 24-CV-4772 (VMS), 2025 WL
22772855, at *3 (E.D.N.Y. Sep. 29, 2025) (same requirements under NYSHRL (first citing
Salamoon v. Richmond Univ. Med. Ctr., 211 N.Y.S.3d 748, 755 (N.Y. Sup. Ct. 2024); then citing
Knight, 275 F.3d at 167; and then citing Baker v. Home Depot, 445 F.3d 541, 546 (2d Cir. 2006))).
“Once the plaintiff establishes a prima facie case, the burden shifts to the employer to show
that it offered the plaintiff ‘a reasonable accommodation, unless doing so would cause the
employer to suffer an undue hardship.’” 	Hamilton, 563 F. Supp. 3d at 53 (quoting Cosme, 287
F.3d at 158); see also NYFRL, 125 F.4th 333 (“‘when an employee has a genuine religious practice
that conflicts with a requirement of employment,’ the employer typically must offer the employee
a ‘reasonable accommodation, unless doing so would cause the employer to suffer an undue
hardship’”) (quoting Cosme, 287 F.3d at 158). “In order to demonstrate an ‘undue hardship,’ an
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employer must show that the burden of granting an accommodation ‘is substantial in the overall
context of [the] employer’s business.’” NYFRL, 125 F.4th at 333 (quoting Groff, 600 U.S. at 468).
Here, at the motion to dismiss stage, Plaintiff states a failure to accommodate claim under
the First Amendment pursuant to § 1983 because she plausibly alleges a sincere religious belief
that prevents her from being vaccinated. Viewing the facts in the light most favorable to Plaintiff,
Plaintiff’s letter to the DOE in seeking a religious accommodation detailed how her religious
beliefs prohibited her from being vaccinated. Dkt. No. 1 at 23-24 (describing Plaintiff’s religious
beliefs). 	Plaintiff further submitted a supplemental letter dated September 13, 2021 from her
former pastor at the Valley Stream Church of the Nazarene, describing the sincerity of Plaintiff’s
religious beliefs. Id. at 25.
Defendants ask the Court to cast judgment on the nature of Plaintiff’s religious belief, but,
as discussed above, this is precisely what the Supreme Court and the Second Circuit forbid. See
NYFRL, 125 F.4th at 332-33 (“[W]e do not ‘sit in judgment on the verity of an adherent’s religious
beliefs.’”); Kane I, 19 F.4th at 168 (“It is not within the judicial ken to question the centrality of
particular beliefs or practices to a faith, or the validity of particular litigants’ interpretation of those
creeds.” (citations omitted)). “The government, if it is to respect the Constitution’s guarantee of
free exercise, cannot impose regulations that are hostile to religious beliefs of affected citizens and
cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious
beliefs and practices.” Kane I, 19 F.4th at 126 (quoting Masterpiece Cakeshop, Ltd. v. Colo. C. R.
Comm’n, 584 U.S. 617, 618-19 (2018)). “Importantly, ‘[l]ocal boards and courts . . . are not free
to reject beliefs because they consider them ‘incomprehensible.’” 	NYFRL, 125 F.4th at 332-33
(quoting United States v. Seegar, 380 U.S. 163, 184-85 (1965)).
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Next, contrary to Defendants’ contention, Plaintiff informed her employer of her beliefs,
as set forth in Dkt. No. 1 at 23-24. And she was eventually disciplined for her failure to comply
with the DOE Vaccine Mandate. As Plaintiff establishes a prima facie claim, Defendants must
show that they offered her a reasonable accommodation, unless doing so would cause DOE to
“suffer an undue hardship.’” Hamilton, 563 F. Supp. 3d at 53 (citations omitted).
But, at this stage in the litigation, Defendants cannot show that it would have suffered an
undue hardship—particularly since it is unclear whether Plaintiff received review by the Citywide
Panel. Indeed, the pleadings suggest that the Citywide Panel never had the opportunity to deny
Plaintiff’s reasonable accommodation request on the independent ground of undue hardship. See
Dkt. No. 1 ¶¶ 16, 18-20, 21, 23, 24.
NYFRL is again instructive here. 	With respect to plaintiff Solon, who did not receive a
Citywide Panel review, the Second Circuit held that “the pleadings and documents incorporated
within the [Consolidated Amended Complaint] do not indicate that the City ever denied Solon’s
accommodation request on the independent ground of undue hardship,” and “vacate[d] the district
court’s dismissal of Solon’s as-applied claim.” NYFRL, 125 F.4th at 335.
To be clear, DOE’s e-mail dated on or about September 24, 2021, did state that DOE
“cannot offer another worksite as an accommodation as that would impose an undue hardship (i.e.
more than a minimal burden) on the DOE and its operations.” 	Dkt. No. 1 at 40. 	After that
September 2021 notice, however, the United States Supreme Court in 2023 rejected the “more than
a minimal burden” standard for undue hardship, and held that to demonstrate undue hardship, “an
employer must show that the burden of granting an accommodation ‘is substantial in the overall
context of [the] employer’s business.’” NYFRL, 125 F.4th at 333 (quoting Groff, 600 U.S. at 468).
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Ultimately, at this juncture, it is unclear whether Plaintiff received “fresh review” under the undue
hardship standard set forth in Groff.
Therefore, the undersigned respectfully recommends that Plaintiff’s Section 1983 failure
to reasonably accommodate her sincerely held religious beliefs claim survive Defendants’ motion
to dismiss.
B. 	Plaintiff 	Fails 	to 	State 	a 	Discrimination 	Claim 	Under 	the 	Fourteenth
Amendment Equal Protection Clause
The Complaint alleges that,
Defendants while acting under the color of law, unlawfully deprived the Plaintiff of her
right to Equal Protection of the Laws, guaranteed by the Fourteenth Amendment of the
United States Constitution, in that they engaged in selective enforcement of their own laws,
rules, regulations, and ordinances against Plaintiff based upon the Plaintiff’s religion and
Plaintiff’s constitutionally protected conduct.
Dkt. No. 1 ¶ 52. Defendants argue that Plaintiff fails to state an Equal Protection Clause claim
because the Complaint states only conclusory allegations of similarly situated employees. 	Dkt.
No. 39 at 27-28; Dkt. No. 41 at 13-14.
“[C]ourts in this Circuit have rejected equal protection claims based on differential
treatment in application of a vaccine mandate based on religion where, as here, the plaintiff failed
to identify similarly situated individuals treated differently.” Mumin v. City of New York, 760 F.
Supp. 3d 28, 63 (S.D.N.Y. 2024) (first citing Mora v. N.Y. State Unified Ct. Sys., No. 22-CV-10322
(VB), 2023 WL 6126486, at *14 (S.D.N.Y. Sep. 19, 2023); and then citing Conde v. Mid Hudson
Reg’l Hosp. Med. Ctr., No. 22-CV-3085 (VB), 2024 WL 168282, at *5 (S.D.N.Y. Jan. 12, 2024));
see also Hurley v. Dep’t of Educ. of N.Y., No. 24-CV-1664 (NRM) (LKE), (“Notably, Plaintiff does
not allege a single comparator in her Complaint.”). Further, even if the plaintiff adequately alleged
she was treated differently from similarly situated individuals, she must still allege she was “treated
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less favorably [than such similarly situated individuals] because of [her] religious affiliation.”
Mora, 2023 WL 6126486, at *14 (underline in original) (citations omitted).
Mora involved the plaintiff identifying “one other judge and two non-judicial employees
who were granted religious exemptions”; the plaintiff alleged that the judge was Catholic, like the
plaintiff, and the two non-judicial employees had “‘substantially similar’ applications to that
submitted by plaintiff.” Id. The court held that these allegations were “conclusory and insufficient
to plead that those individuals are similarly situated to plaintiff.” Id.; see also Hurley, 2025 WL
2711471, at *9 (“merely referencing Christian Scientists, or athletes and performers in such a
vague and general way does not satisfy the comparator prong of a selective enforcement claim”
(citing Mora, 2023 WL 6126486, at *14)).
Here, similar to Mora, Plaintiff’s conclusory allegations—referencing “other teachers
similarly situated . . . [who were] granted exemption/accommodations for their religious beliefs
which prohibited [them from] getting [the] vaccine” (Dkt. No. 1 ¶ 29) and 	“other tenured
employees similarly situated . . . on reassignment (‘rubber rooms’) in Defendants’ district offices
and at home on full salary” (id. ¶ 2; see also id. ¶¶ 38, 46, 48, 49, 52)—are insufficient to plead a
selective enforcement claim under Equal Protection Clause. 	Plaintiff even falls short of the
standard that Hurley rejected, as Plaintiff does not even mention any details about the religious
beliefs of those “similarly situated” employees. 	Moreover, Plaintiff fails to allege that she was
treated less favorably than such similarly situated individuals because of her religious affiliation.
Mora, 2023 WL 6126486, at *14. In fact, Plaintiff states that the DOE has provided “religious-
based accommodations to other tenured employees similarly situated,” 	Dkt. No. 1 ¶ 2, without
specifying whether or not these other individuals shared similar religious beliefs.
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Furthermore, because the DOE Vaccine Mandate is neutral and generally applicable on its
face, rational basis review applies. Kane I, 19 F.4th at 166. As noted above, rational basis review
“requires the City to have chosen a means for addressing a legitimate goal that is rationally related
to achieving that goal.” Id. (citation omitted). The DOE Vaccine Mandate satisfied this standard
because “[a]ttempting to safely reopen schools amid a pandemic that has hit New York City
particularly hard, the City decided, in accordance with CDC guidance, to require vaccination for
all DOE staff as an emergency measure . . . was a reasonable exercise of the State’s power to
protect the public health.” 	Id. (citations omitted); see also NYFRL, 125 F.4th at 332 n.5
(“Appellants also advance Equal Protection claims. As we have explained before, ‘[w]hen a free
exercise challenge fails, any equal protection claims brought on the same grounds are subject only
to rational-basis review.’ . . . Accordingly, because Appellants’ claims cannot survive rational-basis
review, their Equal Protection Clause challenge must fail.”); Bonilla v. City of New York, No. 22-
CV-7113 (AT), 2023 WL 8372859, at *6 (E.D.N.Y. Dec. 4, 2023) (dismissing the plaintiff’s Equal
Protection Clause claim because plaintiff’s “disparate-impact argument amounts to a claim that
the [Vaccine] Mandate discriminates against religious people—a substantively similar argument
to her First Amendment claim.” (citing Kane I, 19 F.4th at 168 n.14)).
Here, Plaintiff’s equal protection claim amounts to an assertion that the DOE Vaccine
Mandate discriminates against religious people. Plaintiff’s facial First Amendment claims failed
because the DOE’s Vaccine Mandate “‘in all its iterations, [wa]s neutral[,] generally applicable,’
and facially constitutional under the Free Exercise Clause.” 	NYFRL, 125 F.4th at 330 (quoting
Kane I, 19 F.4th at 164). Plaintiff’s Equal Protection Clause claim fails on the same grounds. For
these reasons and for Plaintiff’s conclusory allegations, the undersigned respectfully recommends
that the Court dismiss Plaintiff’s Fourteenth Amendment Equal Protection Clause claim.
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C. 	Plaintiff Fails to State a Due Process Claim Under the Fourteenth Amendment
Plaintiff asserts that as she was bound by the Arbitration Award, Plaintiff “was forced to
submit to the procedure that subsequently led to her wrongful termination without due process.”
Dkt. No. 1 ¶ 65; see also id. ¶ 56. Defendants argue that Plaintiff’s due process claim should be
dismissed. Dkt. No. 39 at 30-31; Dkt. No. 41 at 15-16.
i. 	Plaintiff Fails to State a Procedural Due Process Claim
Plaintiff’s procedural due process claim should be dismissed. As the Second Circuit has
held, a plaintiff fails to state a claim for procedural due process where “a plaintiff is given ‘a pre[-
]termination opportunity to respond, coupled with post-termination administrative procedures as
provided by [state] statute.’” Broecker v. N.Y.C. Dep’t of Educ., No. 23-655, 2023 WL 8888588,
at *2 (2d Cir. Dec. 26, 2023) (first quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
547-48 (1985); and then citing Locurto v. Safir, 264 F.3d 154, 171 (2d Cir. 2001)). In the context
of this action, the DOE Vaccine Mandate and the procedures set forth in the Arbitration Award
are sufficient to satisfy the dictates of procedural due process because, as the Second Circuit
explained,
Notwithstanding plaintiffs’ dogged insistence to the contrary, we agree with the
district court that plaintiffs have not pleaded any facts that would suggest that the
pre- or post-deprivation processes afforded to them were constitutionally deficient.
As to pre-deprivation process, the district court explained that plaintiffs received
“ample notice of (1) the Vaccination Mandate, (2) their ability to seek religious and
medical exemptions and appeals, (3) their placement on [LWOP] if they continued
to be noncompliant with the terms of the Vaccination Mandate, and (4) their options
and opportunity to respond.” [Broecker v. N.Y.C. Dep’t of Educ., 573 F. Supp. 3d
878, 888 (E.D.N.Y. 2021)]. Furthermore, the arbitration awards created “an
expedited review process for exemptions and accommodations, providing an
opportunity to be heard for [p]laintiffs challenging their placement on LWOP.” Id.
at 889. As to post-deprivation process, plaintiffs had full opportunity to seek “relief
through an Article 78 proceeding in New York State Supreme Court,” id., which is
adequate for due process purposes. Locurto, 264 F.3d at 175; see Loudermill, 470
U.S. at 547 n.12 (“[T]he existence of post-termination procedures is relevant to the
necessary scope of pre[-]termination procedures.”); Rivera-Powell v. New York
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City Bd. of Elections, 470 F.3d 458, 467 (2d Cir. 2006) (indicating that an Article
78 proceeding can provide due process in combination with “minimal” pre-
deprivation safeguards).
Broecker, 2023 WL 8888588, at *2. 	Due to the DOE Vaccine Mandate and its procedures,
Plaintiff’s participation in the reasonable accommodation, her LWOP notices, and the availability
of an Article 78 proceeding, Plaintiff was afforded due process.
Accordingly, the undersigned respectfully recommends that Plaintiff’s procedural due
process claim be dismissed.
ii. 	Plaintiff Fails to State a Substantive Due Process Claim
Likewise, Plaintiff fails to state a substantive due process claim. “To analyze a claim under
substantive due process, courts perform a two-step analysis.” Fugelsang v. Dep’t of Educ. of N.Y.,
No. 23-CV-8332 (LDH) (LKE), 2025 WL 974276, at *6 (E.D.N.Y. Mar. 31, 2025) (citation
omitted). “First, the court must identify the constitutional right at stake.” Id. (citing Kaluczky v.
City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995)). Second, the court must analyze whether
the state action “was so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.” Id. (citing Southerland v. City of New York, 680 F.3d 127, 151-52 (2d
Cir. 2012)).
Here, Plaintiff cannot identify the constitutional right at stake for her due process claim.
Property interests related to employment are not among protected fundamental rights. Id. (citing
Walker v. City of Waterbury, 361 F. App’x 163, 165 (2d Cir. 2010). Nor is “there a fundamental
right to continued public employment.” 	Id. (citing Maniscalco v. N.Y.C. Dep’t of Educ., 563 F.
Supp. 3d 33, 39 (E.D.N.Y. 2021), aff’d, No. 21-2343, 2021 WL 4814767 (2d Cir. Oct. 15, 2021)).
Further, the DOE Vaccine Mandate is not “so egregious, so outrageous, that it may fairly
be said to shock the contemporary conscience.” Id. Indeed, vaccine mandates are well within the
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State’s police power. Id. (first citing Jacobson, 197 U.S. 11; then citing Zucht v. King, 260 U.S.
174, 176 (1922); and then citing We The Patriots USA, 17 F.4th at 293).
Therefore, the undersigned respectfully recommends Plaintiff’s substantive due process
claim be dismissed.
iii. 	Plaintiff Fails to State a “Stigma Plus” Claim
Although not in the Complaint, Plaintiff asserts in her motion papers that she pled a “stigma
plus” due process claim, arguing that “the Problem Code is a stigma on employees, their career
and life [sic].” Dkt. No. 40 at 20. Defendants argue that Plaintiff cannot plead the “stigma plus”
claim for the first time in her opposition to Defendants’ motion. Dkt. No. 41 at 14. 	As Plaintiff
cannot raise claims for the first time in her opposition papers, the undersigned respectfully
recommends Plaintiff’s “stigma plus” arguments be rejected. See Guo v. IBM 401(k) Plus Plan,
95 F. Supp. 3d 512, 526 (“A complaint cannot be amended merely by raising new facts and theories
in [a plaintiff’s] opposition papers.”) (citations omitted).
Nevertheless, even if properly raised in the Complaint, the “stigma plus” claim cannot
survive. The Second Circuit has held that “a stigma—that is, the loss of one’s good reputation—
may amount to a constitutionally recognized deprivation of liberty without due process if a plaintiff
‘allege[s] (1) the utterance of a statement . . . that is injurious to [her] reputation, that is capable of
being proved false . . . and (2) some tangible and material state-imposed burden . . . in addition to
the stigmatizing statement.” Fugelsang, 2025 WL 974276, at *7 (quoting Velez v. Levy, 401 F.3d
75, 87 (2d Cir. 2005)). 	“Courts in this circuit have consistently held that allegations regarding
placement on DOE’s problem code database, even without a ‘name-clearing hearing,’ are
insufficient to state a stigma plus claim where no statement about the plaintiff was published
outside of the agency.’” Id. (collecting cases).
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Here, the Complaint alleges that DOE placed Plaintiff in the “Problem Code” database
within her DOE personnel file. See, e.g., Dkt. No. 1 ¶ 4 (alleging Defendants placed “Plaintiff’s
fingerprints into a ‘problem code’ or no-hire database”); ¶ 8 (alleging Defendant Rodi “monitors
the disciplinary information in the personnel file that is highlighted by the Problem Code for
principals who may want to hire a former or current employee”); ¶ 23 (“Defendant[] Katherine
Rodi has been Director of [Office of Personnel Investigations] and in charge of placing problem
codes on personnel files since 2012”); ¶ 36 (alleging Defendants “flagged her files with a ‘Problem
Code’ without her knowledge or consent”).
While Plaintiff alleges that the “Problem Code” is entered into “Defendants’ Galaxy
(budget) database used by the FBI and the Department of Labor Unemployment Board (UIAB),”
id. ¶ 39, such an argument is insufficient to raise a claim. 	In fact, in Jean v. Department of
Education of the City of New York, No. 24-CV-2264 (LDH), 2025 WL 2782533, at *6 (E.D.N.Y.
Sep. 30, 2025), Judge LaShann DeArcy Hall rejected this precise argument. There, the plaintiffs
alleged that a problem code designation was placed in their personnel files without a hearing,
amounting to a “stigma plus” violation under the Due Process Clause. Id. The court, however,
rejected that argument, stating “[c]ourts in this circuit have consistently held that a plaintiff’s
designation under the DOE’s problem code, even without a hearing, is insufficient to state a stigma
plus claim where no statement about the plaintiff was published outside of the agency.” Id. (citing
Adams v. N.Y.S. Educ. Dep’t, 752 F. Supp. 2d 420, 454 (S.D.N.Y. 2010), aff’d sub nom., Ebewo v.
Fairman, 460 F. App’x 67 (2d Cir. 2012)). Importantly, the plaintiffs there also alleged that the
problem code was shared outside of the agency—to wit, that the FBI and Department of Labor
referred to DOE’s budgetary system. 	Id. 	The court rejected that argument, holding that the
allegation that “FBI and Department of Labor referred to Defendant’s budgetary system” does not
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save the plaintiffs’ claim. Id. (“That Plaintiff alleges the FBI and Department of Labor referred to
Defendant’s budgetary system does [not]12 operate to save Plaintiffs’ claim. . . . Accordingly,
Plaintiffs’ stigma plus claim must also be dismissed.”). Likewise, Plaintiff’s allegation here that
the Problem Code is entered into “Defendants’ Galaxy (budget) database used by the FBI and the
Department of Labor Unemployment Board (UIAB)” does not save Plaintiff’s “stigma plus” claim
because there is no allegation that any outside agency referred to Plaintiff’s problem code
designation.
Finally, Plaintiff’s “stigma plus” claim fails for the same reasons her procedural due
process claim fails—because she was afforded meaningful pre- and post-deprivation process.
Alterescu v. N.Y.C. Dep’t of Educ., No. 21-CV-925 (KPF), 2022 WL 3646050, at *10 (S.D.N.Y.
Aug. 23, 2022) (“Because a stigma-plus claim falls under the umbrella of other procedural due
process claims, it may be defeated by a showing that a plaintiff was afforded constitutionally-
adequate process.” (collecting cases)).
Therefore, the undersigned respectfully recommends that Plaintiff fails to state a “stigma
plus” claim herein.
D. 	Plaintiff Fails to State a Claim for Fraud in the Inducement
The Complaint alleges that Arbitrator “Scheinman committed a fraud against Plaintiff . . .
by issuing lawless requirements of procedure that Plaintiff could not comply with yet relied on to
her detriment. Scheinman’s actions were intentional and deliberate.” Dkt. No. 1 ¶ 66; see also id.
¶ 10 (“Defendants were at all times acting under color of law in breaching their covenant of good
will and fair dealing with the Plaintiff as well as committing fraud in the inducement.”); ¶ 15
(“Arbitrator Martin Scheinman created a lawless [LWOP] that involuntarily removed all
12 The undersigned believes this omission is a scrivener’s error as the court dismissed the “stigma plus”
claims.
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Department [of Education] employees from their jobs if they did not submit a COVID vaccination
card to the Department by October 4, 2021”); ¶ 32 (“Defendants wrongfully, deliberately, in bad
faith and under color of law attempted to fraudulently induce her to choose to relinquish her
protected beliefs in order to submit to an experimental vaccine, and then punished her for not
agreeing to this extortion and discrimination”); ¶ 38 (“Defendants wanted—and succeeded—in
fraudulently harassing and discriminating against Plaintiff to get them out of their positions quickly
without due process. Their procedure, namely allowing Martin Scheinman to hold hearings where
everyone would be denied their appeal, [worked]. Until November 28, 2021 [when the Second
Circuit issued Kane I].”). Defendants argue that Plaintiff fails to satisfy even one of the pleading
requirements to sufficiently plead a fraud in the inducement claim. Dkt. No. 39 at 29.
“Under New York law, a claim for fraud in the inducement requires: (1) a misrepresentation
or omission of material fact; (2) which the defendant knew to be false; (3) which the defendant
made with the intention of inducing reliance; (4) upon which the plaintiff reasonably relied; and
(5) which caused injury to the plaintiff.” Alpha Cap. Anstalt v. Oxysure Sys., Inc., 252 F. Supp. 3d
332, 339 (S.D.N.Y. 2017) (citation omitted). Allegations of fraud are subjected to the heightened
pleading standards of Rule 9(b), which require a party to “state with particularity the circumstances
constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “Conclusory allegations of fraud” do not meet
Rule 9(b)’s heightened pleading standard and are therefore subject to dismissal at the motion to
dismiss stage. See Nasso v. Bio Reference Labs., Inc., 892 F. Supp. 2d 439, 446 (E.D.N.Y. 2012)
(Bianco, J.) (citing Shemtob v. Shearson, Hammill & Co., 448 F.2d 442, 444 (2d Cir. 1971)); see
also Alpha Cap. Anstalt, 252 F. Supp. 3d at 341 (holding that fraud in the inducement claims are
subject to Rule 9(b)’s heightened pleading standard).
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To comply with the requirements of Rule 9(b), “the complaint must: (1) specify the
statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and
when the statements were made, and (4) explain why the statements were fraudulent.” Lerner v.
Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006) (quoting Mills v. Polar Molecular Corp., 12
F.3d 1170, 1175 (2d Cir. 1993)); see also Eternity Glob. Master Fund Ltd. v. Morgan Guar. Tr. Co.
of N.Y., 375 F.3d 168, 187 (2d Cir. 2004) (“Although [m]alice, intent, knowledge and other
conditions of mind of a person may be averred generally, a plaintiff ‘must allege facts that give
rise to a strong inference of fraudulent intent,’ which may be established either (a) by alleging facts
to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts
that constitute strong circumstantial evidence of conscious misbehavior or recklessness.”) (internal
citations omitted).
Here, 	Plaintiff 	fails 	to 	plausibly 	allege 	that 	Defendants 	made 	any 	material
misrepresentations of fact. Nor does she identify any activity by Defendants that rises to the level
of fraud. And she also fails to identify any particular misstatements of fact that Defendants made.
Instead, Plaintiff accuses non-party Arbitrator Scheinman of committing fraud by issuing and
implementing the Arbitration Award. Dkt. No. 1 ¶¶ 10, 15, 32, 38, 66. As established above, the
appointment of Arbitrator Scheinman and the issuance and implementation of the Arbitration
Award stemmed from the UFT’s formal objection and request for arbitration on September 1, 2021,
and on September 10, 2021, Arbitrator Scheinman issued the Arbitration Award “setting forth a
process and standards for determining, among other things, religious accommodations to the
Vaccine Mandate.” Barrett, 2025 WL 1786910, at *7.
Assuming 	the 	statements 	of 	a 	non-party Arbitrator 	Scheinman 	are 	attributable 	to
Defendants (which they are not), Plaintiff still does not point to any facts “suggesting conscious
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misbehavior or recklessness at the time that Defendants made the alleged representations.” Prysm
Grp., LLC v. Emeritus Inst. of Mgmt. PTE LTD, No. 24-CV-9305 (VM), 2025 WL 1827274, at *9
(S.D.N.Y. July 2, 2025). At bottom, Plaintiff’s conclusory allegations are insufficient to state a
claim for fraud. See Trabacchi v. Dep’t of Educ. of N.Y., No. 24-CV-6123 (RPK) (TAM), 2025 WL
2922708, at *24 (E.D.N.Y. July 31, 2025) (recommending dismissal of fraudulent inducement
claims that did not meet Federal Rule of Civil Procedure 9(b) heightened pleading standard
because “[i]n her complaint, Plaintiff makes largely conclusory allegations that non-party Martin
Scheinman committed fraud”);13 see also Williams v. Ocwen Loan Serv., LLC, No. 19-CV-2187
(KAM) (LB), 2020 WL 5757640, at *6 (E.D.N.Y. Sep. 27, 2020) (dismissing the claim of fraud
where “[p]laintiffs’ complaint does nothing more than state bare legal conclusions in connection
with the forgery claim”); Ocampo v. JP Morgan Chase Bank, N.A., 93 F. Supp. 3d 109, 119
(E.D.N.Y. 2015) (“Plaintiffs . . . merely assert in a conclusory fashion that the copies of the
documents sought to be recorded . . . were forgeries. Thus . . . Plaintiffs fail to state a [claim] for
forgery, and [the court] grants Defendant’s motion to dismiss.”).
Therefore, the undersigned respectfully recommends the Court dismiss Plaintiff’s fraud in
the inducement claim.
E. 	Plaintiff Fails to State a Claim for Breach of the Implied Covenant of Good
Faith and Fair Dealing
Plaintiff alleges a claim for breach of an implied covenant of good faith and fair dealing,
also 	based 	on Arbitrator 	Scheinman 	“intentional[ly] 	and 	deliberate[ly]” 	“issuing 	lawless
13 In Trabacchi, the court did not have the opportunity to adopt the magistrate judge’s report and
recommendation because the plaintiff’s amended complaint rendered the motion to dismiss and the report
and recommendation moot. See Trabacchi, No. 24-CV-6123 (RPK) (TAM), Order dated Oct. 29, 2025.
The undersigned nonetheless cites that action’s reasoning which involves the exact argument that Plaintiff
asserts in this action, also against non-party Arbitrator Scheinman.
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requirements of procedure that Plaintiff could not comply with yet relied on to her detriment.”
Dkt. No. 1 ¶ 66. Defendants’ papers do not address this claim. See generally Dkt Nos. 39, 41.
“Under New York law, ‘implicit in every contract is a covenant of good faith and fair
dealing[,] which encompasses any promises that a reasonable promisee would understand to be
included.’” 	State Farm Mut. Auto. Ins. Co. v. Metro Pain Specialists, P.C., No. 21-CV-5523
(MKB), 2025 WL 1166982, at *6 (E.D.N.Y. Mar. 26, 2025) (quoting JN Contemp. Art LLC v.
Phillips Auctioneers LLC, 29 F. 4th 118, 128 (2d Cir. 2022)). This covenant states “neither party
to a contract shall do anything [that] has the effect of destroying or injuring the right of the other
party to receive the fruits of the contract, or to violate the party’s presumed intentions or reasonable
expectations.” Id. (citations and internal quotations omitted). The covenant “only impose[s] an
obligation consistent with other mutually agreed upon terms in the contract. It does not add . . . to
the contract a substantive provision not included by the parties.” Id. (citations omitted). In other
words, “[b]ecause the duties imposed by the implied covenant of good faith and fair dealing arise
as a result of the formation of a contractual relationship between the parties, a claim for breach of
the implied covenant of good faith and fair dealing must be dismissed when there is no valid and
enforceable contract between the parties.” Kitchen Winners NY Inc. v. Rock Fintek LLC, 668 F.
Supp. 3d 263, 288 (S.D.N.Y. 2023) (citing Hadami, S.A. v. Xerox Corp., 272 F. Supp. 3d 587, 598
(S.D.N.Y. 2017)); DeMarle v. Videk, Inc., 678 F. Supp. 3d 353, 361-62 (W.D.N.Y. 2023) (quoting
same); see also Randall’s Island Aquatic Leisure, LLC v. City of New York, 938 N.Y.S.2d 62, 63
(N.Y. App. Div. 2012) (“There can be no claim of breach of the implied covenant of good faith and
fair dealing without a contract.”).
Here, Plaintiff could not state such a claim for breach of implied covenant of good faith
and fair dealing because the Complaint and the documents incorporated by reference are wholly
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devoid of any allegations related to a contract. 	The Complaint does not identify any contract,
much less what provisions of a contract were breached.
Therefore, the undersigned respectfully recommends that Plaintiff does not state a claim
for breach of implied covenant of good faith and fair dealing.
F. 	Plaintiff Was Not Entitled to a Hearing Under New York Education Law §§
3020 and 3020-a
The Complaint alleges violations of New York Education Law §§ 3020 and 3020-a for
failure to provide Plaintiff a hearing before termination of her employment. Dkt. No. 1 ¶¶ 59-60.
Defendants argue that Plaintiff was not entitled to a hearing because “the issue of vaccination
involves a condition of employment and not some other basis for termination such as misconduct.”
Dkt. No. 39 at 24; Dkt. No. 41 at 15-16.
New York Education Law § 3020(1) provides, “[n]o person enjoying the benefits of tenure
shall be disciplined or removed during a term of employment except for just cause and in
accordance with the procedures specified in section three thousand twenty-a of this article . . . .”
N.Y. Educ. Law § 3020. Section 3020-a of the New York Education Law provides the procedures
for such hearing, including when a hearing is necessary. 	See N.Y. Educ. Law § 3020-a(3)(a)
(“Notice of hearing”). Charges under §§ 3020 and 3020-a are generally for unauthorized absence,
excessive lateness, neglect of duty, or “any substantial cause that renders the employee unfit to
perform his obligations properly to the service.” Verne v. N.Y.C. Dep’t of Educ., No. 21-CV-5427
(JPC), 2022 WL 4626533, at *2 n.2 (S.D.N.Y. Sep. 30, 2022) (citing N.Y. Educ. Law § 2590-
j(7)(b)).
Importantly, “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 in N.Y. Educ. Law §§ 3020, 3020-a, or
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N.Y. Civil Service Law § 75.” 	Broecker v. N.Y.C. Dep’t of Educ., 585 F. Supp. 3d 299, 318-19
(E.D.N.Y. 2022) (collecting cases), aff’d, No. 23-655, 2023 WL 7485465 (2d Cir. Nov. 13, 2023)
and 2023 WL 8888588 (2d Cir. Dec. 26, 2023). Thus, because “receiving a vaccination against
COVID-19 is a condition of employment for NYC DOE employees, the NYC DOE need not
pursue the disciplinary procedures contained in New York Education Law Section 3020-a or Civil
Service Law Section 75 prior to terminating NYC DOE employees due to their noncompliance
with the Vaccination Mandate.” 	Id. at 319 (citations omitted); see also Trabacchi., 2025 WL
2922708, at *24 (“Because compliance with the [DOE Vaccine] Mandate was a condition of
employment for the DOE, and Plaintiff herself acknowledges that she failed to satisfy this
‘qualification of employment,’ she was not entitled to disciplinary procedures or a hearing under
§§ 3020 and 3020-a.” (citing Broecker, 585 F. Supp. 3d at 318)).
Thus, the undersigned respectfully recommends that Plaintiff’s New York Education Law
§§ 3020 and 3020-a claims be dismissed.
G. 	Defendant Rodi Has No Personal Involvement and Should be Dismissed
Defendants argue that individual Defendant Rodi should be dismissed for lack of personal
involvement in the alleged constitutional deprivations. 	Dkt. No. 39 at 22; 	Dkt. No. 41 at 16.
Plaintiff argues that personal involvement has been established because Defendant Rodi inputted
the “Problem Code” in Plaintiff’s personnel file. Dkt. No. 40 at 31-32; see also Dkt. No. 1 ¶¶ 3,
8, 23.
It is well-settled that “[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a
plaintiff must plead that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; Feingold v. New York, 366 F.3d
138, 159 (2d Cir. 2004) (holding that “[a] finding of ‘personal involvement of [the individual]
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defendants’ in an alleged constitutional deprivation is a prerequisite to an award of damages under
Section 1983.”); Ahmad v. N.Y.C. Dep’t of Educ., No. 18-CV-3494 (HG) (LB), 2023 WL 2734628,
at *7 (E.D.N.Y. Mar. 31, 2023) (holding that a § 1983 claim against an individual defendant
“requires a showing of ‘culpable personal involvement [on the part] of the individual defendant’”)
(citation omitted); Morse v. Mallernee, No. 13-CV-1354 (LEK) (DEP), 2017 WL 1133357, at *3
(N.D.N.Y. Feb. 17, 2017) (“Personal involvement of defendants in an alleged constitutional
deprivation is a prerequisite to an award of damages under [section] 1983.”) (citations omitted)),
report and recommendation adopted, 2017 WL 11333413 (N.D.N.Y. Mar. 24, 2017). “The Second
Circuit has held that personal involvement . . . means direct participation, or failure to remedy the
alleged wrong after learning of it, or creation of a policy or custom under which unconstitutional
practices occurred, or gross negligence in managing subordinates.” Ahmad, 2023 WL 2734628,
at *7 (citations omitted). In addition, Plaintiff must show “that the adverse action would not have
occurred but for the individual defendant’s intent to discriminate.” Id. (footnote omitted) (citation
omitted). 	Likewise, “‘employees may be held personally liable under the [NYS]HRL and the
NYCHRL’ if they participate ‘in the conduct giving rise to a discrimination claim.’” 	Feingold,
336 F.3d at 158-59 (citation omitted); see also Foster v. Consol. Edison Co. of N.Y., Inc., No. 21-
CV-3570 (DLC), 2021 WL 4461163, at *1 (S.D.N.Y. Sep. 29, 2021) (holding that under the
NYSHRL and NYCHRL, “when the claim is against an individual defendant, the plaintiff must
plausibly allege that the individual defendant ‘actually participated in the conduct giving rise to
[the] claim of unlawful discrimination’ in order to survive a motion to dismiss” (citing, inter alia,
Feingold, 366 F.3d at 157-59 (“setting forth an actual participation standard for individual liability
under the NYSHRL and NYCHRL”)).
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Where the plaintiff alleges that an individual defendant “caused Plaintiff to be ‘flagged’ or
‘problem coded’ in one or more DOE databases,” but does not allege that the individual defendant
“ever had any direct interaction” with the plaintiff, or that the individual defendant “ever
mentioned . . . religion,” or treated the plaintiff differently than any other individual, the allegations
are insufficient to state a § 1983 claim against that individual defendant. 	Ahmad, 2023 WL
2734628, at *8; see also Morse, 2017 WL 1133357, at *5 (dismissal of First Amendment Free
Exercise Clause claim against an individual defendant for that individual defendant’s failure to
investigate and nothing more).
Here, Plaintiff’s allegations that Defendant Rodi placed Plaintiff on the “Problem Code”
database (Dkt. No 1 ¶ 3), and that Defendant Rodi was “in charge of placing problem codes on
personnel files since 2012 (id. ¶ 23), without more, are insufficient to state a § 1983 claim against
Defendant Rodi. 	The Complaint lacks any allegation that Defendant Rodi had any direct
interaction with Plaintiff, mentioned religion, or treated Plaintiff differently than any other
individual. 	See Ahmad, 2023 WL 2734628, at *8; Morse, 2017 WL 1133357, at *5. 	In sum,
Plaintiff fails to state any claim against Defendant Rodi. 	Ahmad, 2023 WL 2734628, at *8
(dismissing the similar claims against Rodi in a parallel action).
Therefore, the undersigned respectfully recommends dismissal of Defendant Rodi from
this action.
H. 	Plaintiff’s NYSHRL and NYCHRL Claims Are Time Barred
Defendants argue, inter alia, that Plaintiff is barred by the statute of limitations for
NYSHRL and NYCHRL claims. Dkt. No. 39 at 15-16; Dkt. No. 41 at 8-10. Plaintiff argues that
NYSHRL claims have a three-year statute of limitations. Dkt. No. 40 at 3.
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While “[c]laims under the NYSHRL and NYCHRL are generally governed by a three-year
statute of limitations,” “pursuant to New York Education Law §§ 3813(1), (2-b), a one-year statute
of limitations governs NYSHRL and NYCHRL claims against school districts and their officers.”
Riccardo v. N.Y.C. Dep’t of Educ., No. 16-CV-4891 (LAK) (JCF), 2016 WL 7106048, at *6
(S.D.N.Y. Dec. 2, 2016) (first citing N.Y. C.P.L.R. § 214(2) (NYSHRL); then citing N.Y.C. Admin.
Code § 8-502(d) (NYCHRL); and then citing N.Y. Educ. Law § 3813(1), (2-b) (claims against the
school district and their officers)); see also Trabacchi, 2025 WL 2922708, at *11 (“Plaintiff’s
NYSHRL and NYCHRL claims against the DOE are subject to a one-year statute of limitations”);
Schwartz v. Middletown Sch. Dist., No. 23-CV-1248 (KMK), 2024 WL 1257095, at *9 (S.D.N.Y.
Mar. 25, 2024) (“NYSHRL claims are typically subject to a ‘three-year statute of limitations,’ . . .
[b]ut claims against school districts are subject to a special one-year limitations provision.”) (citing
inter alia N.Y. C.P.L.R. § 214; N.Y. Educ. Law § 3813(2-b)); Cannizaro v. City of New York, 206
N.Y.S.3d 868, 880 (N.Y. Sup. Ct. 2023) (“In an action against the City for claims arising under the
City and State Human Rights Law, the statute of limitations is three years. . . when asserting City
or State HRL discrimination claims against the DOE, the one-year limitations period prescribed in
Education Law § 3813(2-b) governs.”). Hence, NYSHRL and NYCHRL discrimination claims
against the DOE are governed by the one-year statute of limitations under New York Education
Law § 3813(2-b). See Riccardo, 2016 WL 7106048, at *8; Cannizzaro, 206 N.Y.S.3d at 881.
“[A]n employment discrimination claim accrues on the date that an adverse employment
determination is made and communicated to plaintiff.” Ferraro v. Ramapo Cent. Sch. Dist., No.
17-CV-2039 (VB), 2017 WL 6343686, at *3 (S.D.N.Y. Dec. 11, 2017) (quoting Pinder v. City of
New York, 49 A.D.3d 280, 281 (N.Y. App. Div. 2008)).
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Here, at the latest, Plaintiff’s claim accrued on the date she received the termination notice
on February 18, 2022.14 	Dkt. No. 1 ¶ 21; Dkt. No. 38-9 at 5-6; see also Ferraro, 2017 WL
6343686, at *3 (“Accordingly, plaintiff’s claim accrued . . . when he was notified of his
termination.”). Plaintiff commenced this action on November 8, 2024, more than two years and
eight months after her accrual date. Plaintiff cites to nothing that could toll the limitations time
period, and the undersigned finds none at this stage. 	See, e.g., Ikedilo v. Statter, No. 23-7947,
2025 WL 1011346, at *2 (2d Cir. Apr. 2, 2025) (“Contrary to plaintiff’s argument[,] . . . an
employment discrimination claim accrues on the date that an adverse employment determination
is made and communicated to [the] plaintiff, and the possibility that the determination may be
reversed is insufficient to toll the limitations period.”) (quoting Pinder, 49 A.D.3d at 281));
Arrocha v. City Univ. of N.Y., 878 F. Supp. 2d 364, 369, n.4 (E.D.N.Y. 2012), aff’d, 523 F. App’x.
66 (2d Cir. 2013) (“It has long been settled that a claim of employment discrimination accrues for
statute of limitations purposes on the date the employee learns of the employer’s discriminatory
conduct [and] the pendency of a grievance, or some other method of collateral review of an
employment decision, does not toll the running of the limitations period”).
Therefore, the undersigned respectfully recommends that Plaintiff’s NYSHRL and
NYCHRL claims be dismissed as time-barred under the one-year statute of limitations, without
prejudice to renewal, as discussed further in Part IV below. 15
14 As discussed above, while there is some conflict as to whether Plaintiff’s termination date was February
11, 2022 or February 18, 2022. Compare Dkt. No. 1 at 52, 55 (February 11, 2022) with id. ¶ 21 (Plaintiff
alleging that the termination date was February 18, 2022). The difference is ultimately immaterial because
Plaintiff would be time-barred either way. However, given the standard of construing the facts in the light
most favorable to the Plaintiff and the liberality afforded to pro se pleadings, the undersigned will assume
for the purposes of this motion, that the termination was effective February 18, 2022.
15 As the undersigned respectfully recommends that Plaintiff be granted leave to amend her complaint with
respect to the NYSHRL and NYCHRL claims, the undersigned submits that the Court need not address the
timeline of her notice of claim at this juncture. The undersigned, however, notes the following. According
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IV. 	Leave to Amend
Plaintiff seeks leave to amend her Complaint. 	Dkt. No. 1 at 21; Dkt. No. 40 at 25.
Defendants do not address Plaintiff’s requested leave to amend the Complaint. See generally Dkt.
Nos. 39 and 41.
“When addressing a pro se complaint, a district court should not dismiss without granting
leave to amend at least once when a liberal reading of the complaint gives any indication that a
valid claim might be stated.” Aquino v. Prudential Life & Cas. Ins. Co., 419 F. Supp. 2d 259, 278
(E.D.N.Y. 2005) (citing Thompson v. Carter, 284 F.3d 411, 419 (2d Cir. 2002) (“The liberal
pleading standards applicable to pro se civil rights complaints in this circuit require that the district
court give [plaintiff] an opportunity to flesh out his somewhat skeletal complaints before
dismissing them”)). The Second Circuit has stated that “[w]hen a motion to dismiss is granted,
the usual practice is to grant leave to amend the complaint.” Hayden v. Cnty. of Nassau, 180 F.3d
42, 53 (2d Cir. 1999) (citation omitted); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely
give leave [to amend] when justice so requires.”). “The Court should generally not dismiss a pro
se complaint without granting the plaintiff leave to amend if a valid claim could be stated.” Clifton
v. Hra Nyc Govt, No. 16-CV-1753 (RRM) (CLP), 2016 WL 4203486, at *1 (E.D.N.Y. Aug. 9,
2016) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
to Defendants, Plaintiff filed a Notice of Claim only with the New York City Comptroller on May 6, 2022,
and another Notice of Claim with DOE on March 17, 2023. See Dkt. No. 41 at 8. See id. Defendants
contend that such service—allegedly solely on the New York City Comptroller—was insufficient to
constitute service of the Notice of Claim on DOE. See id. at 9-10. There is, however, case law to suggest
that service on the Comptroller’s Office constitutes service on DOE. 	See, e.g., Graham v. N.Y.C. Dep’t of
Educ., No. 21-CV-6885 (WFK) (LB), 2025 WL 872221, at *4 (E.D.N.Y. Mar. 20, 2025) (quoting an
affidavit from a paralegal at the New York City Office of the Corporation Counsel that attests that “[t]he
Office of Corporation Counsel and the Comptroller’s Office are designated to receive notices on behalf of
the [DOE].”). Should Plaintiff seek to amend the Complaint to include a revised NYSHRL or NYCHRL
claim, Plaintiff shall address this issue accordingly.
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Even under this liberal standard, however, the court may decline to provide the plaintiff
with an opportunity to re-plead if the court finds that the plaintiff “cannot correct the defects in his
federal claims” and therefore “any attempt to amend the pleading . . . would be futile.” Shorter v.
Rice, No. 12-CV-111, 2012 WL 1340088, at *5 (E.D.N.Y. Apr. 10, 2012) (Bianco, J.); see Cuoco,
222 F.3d at 112 (citing Hunt v. All. N. Am. Gov’t Income Tr., 159 F.3d 723, 728 (2d Cir. 1998))
(“The problem with [the plaintiff’s] causes of action is substantive; better pleading will not cure
it. Repleading would thus be futile. Such a futile request to replead should be denied.”); see also
Washington v. New York, No. 25-CV-2070 (DG) (TAM), 2025 WL 2452405, at *5 n.8 (E.D.N.Y.
Aug. 26, 2025); Henry v. Katz, No. 25-CV-2976 (DG) (TAM), 2025 WL 2793657, at *3 n.6
(E.D.N.Y. Oct. 1, 2025) (same); Azam v. Noem, No. 25-CV-1394 (DG), 2025 WL 3260494, at *4
n.7 (E.D.N.Y. Nov. 20, 2025).
As noted above, the undersigned respectfully recommends that the Court deny Defendants’
motion to dismiss with respect to Plaintiff’s as-applied First Amendment Free Exercise Clause and
Establishment Clause claims as well as her Section 1983 failure to reasonably accommodate her
sincerely held religious beliefs claim under the First Amendment—but grant Defendants’ motion
to dismiss in all other respects. Plaintiff has not provided any indication as to how she seeks to
amend the Complaint, nor is it apparent how she can cure the deficiencies in all of her claims that
the undersigned recommends dismissal. See Noto v. 22nd Century Grp., Inc., 35 F.4th 95, 107-08
(2d Cir. 2022) (“But a court need not always allow a party to replead simply because it asked. In
particular, denial of leave to amend is proper where the request gives no clue as to how the
complaint’s defects would be cured. That is the situation here.”) (cleaned up).
Thus, notwithstanding Plaintiff’s pro se status, the undersigned respectfully recommends
that dismissal be without leave to amend, as any such amendment would be futile in light of the
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deficiencies set forth above, which cannot be cured by better pleading—with two exceptions. First,
Plaintiff’s brief argues First Amendment retaliation, which is a claim that is not pleaded in the
Complaint. Dkt. No. 40 at 16-18. Defendants’ reply brief points out that Plaintiff fails to plead a
First Amendment retaliation claim in the Complaint and cannot assert new claims for the first time
in opposition to a motion to dismiss. Dkt. No. 41 at 13. At this time, Plaintiff has not sought to
add a First Amendment retaliation claim to her Complaint. But given Plaintiff’s pro se status, the
undersigned respectfully recommends that leave to amend the Complaint on this ground be
permitted.
Second, Plaintiff’s NYSHRL and NYCHRL claims appear to be futile. 	But “[i]n an
abundance of caution, given Plaintiff’s pro se status, the Court respectfully recommends granting
leave to amend” her NYSHRL and NYCHRL claims, “with the caution to Plaintiff that any
amended pleading must plausibly establish compliance with the procedural requirements”—
“namely, that the claim is brought within the one-year statute of limitations.” Trabacchi, 2025 WL
2922708, at *27. 	Moreover, it is not clear whether Plaintiff filed an U.S. Equal Employment
Opportunity Commission (“EEOC”) complaint at any point, which may serve to toll the one-year
statute of limitations on her NYSHRL and NYCHRL claims. See Dipiano v. N.Y.C. Dep’t of Educ.,
No. 24-CV-4901 (BMC), 2025 WL 2645548, at *5 (E.D.N.Y. Sep. 15, 2025) (explaining that
“[c]ourts are divided regarding whether filing an EEOC complaint tolls the one-year statute of
limitations on NYSHRL and NYCHRL claims against school districts” but finding that “the one-
year statute of limitations for NYSHRL and NYCHRL claims against school districts is tolled
while an EEOC charge is pending”) (citations omitted)). Indeed, to the extent Plaintiff will seek
to 	equitably 	toll 	the 	limitations 	period, 	Plaintiff 	will 	need 	to allege 	that 	“extraordinary
circumstances prevented them from suing during the limitations period.” Chalmers v. NCAA, No.
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25-1307-CV, 2025 WL 3628416, at *5 (2d Cir. Dec. 15, 2025) (citing Watson v. United States, 865
F.3d 123, 132 (2d Cir. 2017)). Accordingly, the undersigned respectfully recommends that leave
to amend Plaintiff’s NYSHRL and NYCHRL claims be permitted.
V. 	Conclusion
For the foregoing reasons, the undersigned respectfully recommends that the Court deny
Defendants’ motion to dismiss with respect to Plaintiff’s as-applied First Amendment Free
Exercise Clause and Establishment Clause claims as well as her Section 1983 failure to reasonably
accommodate her sincerely held religious beliefs claim under the First Amendment. 	The
undersigned respectfully recommends that the Court grant Defendants’ motion to dismiss with
respect to Plaintiff’s (1) facial Free Exercise Clause and facial Establishment Clause challenges to
the DOE Vaccine Mandate, to the extent they have been raised; (2) Fourteenth Amendment Equal
Protection claim; (3) procedural due process claim; (4) substantive due process claim; (5) “stigma
plus” due process claim; (6) fraud in the inducement claim; (7) claim for breach of the implied
covenant of good faith and fair dealing; (8) New York Education Law §§ 3020 and 3020-a claims;
and (9) all claims against Defendant Rodi. The undersigned further respectfully recommends that
leave to amend the complaint be granted solely with respect to (1) a potential First Amendment
retaliation claim; and (2) the NYSHRL and NYCHRL claims, to the extent that such claims are
brought within the one-year statute of limitations or have otherwise been equitably tolled.
A copy of this Report and Recommendation is being electronically served on counsel. This
Court directs Defendants’ counsel to serve a copy of this Report and Recommendation by first-
class mail, overnight mail, and e-mail on Plaintiff and to file proof of service on ECF by December
29, 2025. Copies shall be served at the following address:
Corrine Lynch
34 Cheslan Ct.
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Oceanside, New York 11572
E-mail: rins083082@aol.com
Any objections to this Report and Recommendation must be filed within 14 days after
service of this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
See also Fed. R. Civ. P. 6(a) & (d) (addressing computation of days). Any requests for an extension
of time for filing objections must be directed to Judge Gujarati. Failure to file objections within
fourteen days will preclude further review of this Report and Recommendation either by the
district court or the Second Circuit. See Thomas v. Arn, 474 U.S. 140, 145 (1985) (“a party shall
file objections with the district court or else waive right to appeal”); Caidor v. Onondaga Cnty.,
517 F.3d 601, 604 (2d Cir. 2008).
Dated: 	Brooklyn, New York 	SO ORDERED.
December 26, 2025
/s/ Joseph A. Marutollo
JOSEPH A. MARUTOLLO
United States Magistrate Judge
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