23-655 Broecker v. N.Y.C. Dep’t of Educ.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

AMENDED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of December, two thousand twenty-three.

PRESENT:

JOHN M. WALKER, JR., REENA RAGGI, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________________________________

NICOLE BROECKER, MICHELLE MARTINO, GINA PORCELLO, AMOURA BRYAN, RENA GELLMAN, FONTINA LAMBOS, KERRY BEN-JACOB, EKATERINA UDINA, ANDREA TICHIO, MARIANNA CIACCA-LISS, ANITA QUASH, KELLY DIXON, FELICIA HAGAN, MARITZA ROMERO, MARIA RUSCELLI, BETZIADA CRUZ, FRANCINE TRAPANI, JEANNINE LAM, JESSICA NARCISO, BRIANNA PEREZ, NICOLETTA MASULLO, ANASTASIA CHRSTOPOULOS, FAYE KOTZER, BENEDICT LOPARRINO, YADITZA RODRIGUEZ, RAFAEL TORO, SERINA MENDEZ, DINA HUSSEIN, HERENDYRA PEREYRA, ROSA ABREU, LISA WILLIAMS, JOAN GIAMMARINO, ANDREA JACKSON, MARIA KLAPAKIS, STELLA PORTO, TONIANN MIRAGLIA, ROSEANNA SILVERSTRI INCANTALUPO, JULIA MAVIS, CHRISTOPHER HANSEN, ANNETTE BACKOF, DIANE PAGEN, LYNN PEPE, STEPHANIE EDMONDS, YVONNE COSTELLO, DEBBIE HARTZ, SORAYA SANCHEZ, MONIQUE MOORE, ANGELA VELEZ, SALLY MUSSAFI, JESSICA NICCHIO, DORCA GENAO, RACHEL MANISCALCO, JAMES HOFFMAN, SHARLAYNE JACOBS, CRYSTAL SALAS, FRANCES DIPROSSIMO, CAROLA MARTINEZ-VAN BOKKEM, AYSE USTARES, ELIZABETH FIGUEROA, DIANNE BAKER-PACIUS, NICOLE MOORE, ELIZABETH PLACENCIO, DEBBIE BERTRAM, KIMBERLI MADDEN, FRAN SCHMITTTER, VICTORIA RUSSO, PAUL CIFARELLI, DANIELLE HEAL, SARA COOMBS- MORENO, LISA SIMO, TAMI BENEDUCE, ZABDIEL VALERA, NATHALIE CHARLES, JANELLE LOTITO, JEANEAN SANCHEZ, MARIE MOSLEY, TARA PALLADINO, DANIELLE MCGUIRE, JULIA HARDING, LEAH KUKLA, STEPHANIE FRANZESE, JULIA BLASIS-MARING, BETH SCHIANO, LAURA SALAMONE, AURA MOODY, AUBREY JOERGENS, MEAGAN VELEZ, JENNIFER ZACCARIELLO, RICHARD JOSEPH, ELIZABETH LOIACONO, LORRAINE MASCIARELLI, DEIDRA STATUTO, ELENI GERASIMOU, and HENRIETTA SHAYA,

Plaintiffs-Appellants,

v. No. 23-655

NEW YORK CITY DEPARTMENT OF EDUCATION, MEISHA PORTER, UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, MICHAEL MULGREW, COUNCIL OF SUPERVISORS AND ADMINISTRATORS, MARK CANNIZZARO, DISTRICT COUNCIL 37, AFSCME AFL-CIO, HENRY GARRIDO, SHAUN D. FRANCOIS, I, FRANCINE FRANCIS, MARTIN F. SCHEINMAN, SCHEINMAN ARBITRATION AND MEDIATION SERVICES, LLC, SCHEINMAN ARBITRATION AND MEDIATION SERVICES, DISTRICT COUNCIL 37, AFSCME AFL-CIO, LOCAL 372, DISTRICT COUNCIL 37, AFSCME AFL-CIO, LOCAL 1251,

Defendants-Appellees. _____________________________________________________________

2 For Appellants: AUSTIN GRAFF, The Scher Law Firm, LLP, Garden City, NY.

For Appellees New York City CHLOE K. MOON (Sylvia O. Hinds- Department of Education and Meisha Radix, Richard Dearing, Claude S. Porter: Platton, on the brief), New York City Law Department, New York, NY.

For Appellees United Federation of DINA KOLKER, Stroock & Stroock & Teachers, Michael Mulgrew, Council Lavan LLP, New York, NY. of Supervisors and Administrators, and Mark Cannizzaro:

For Appellees District Council 37, PETER DECHIARA, Cohen, Weiss and Henry Garrido, Shaun Francois, Simon LLP, New York, NY. Francine Francis, Local 372, and Local 1251:

For Appellees Martin F. Scheinman, ADONAID C. MEDINA (Gregg D. Scheinman Arbitration and Weinstock, on the brief), Vigorito, Mediation Services, and Scheinman Barker, Patterson, Nichols & Porter, Arbitration and Mediation Services, LLP, Valhalla, NY. LLC:

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Kiyo A. Matsumoto, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the March 31, 2023 judgment of the district

court is AFFIRMED.

3 Plaintiffs Nicole Broecker and other current and former employees of the

New York City Department of Education (the “DOE”) appeal from a judgment of

the district court dismissing their claims under

against the DOE,

plaintiffs’ unions, and various individuals relating to the implementation and

enforcement of New York City’s COVID-19 vaccine mandate (the “Vaccine

Mandate”). 1 Specifically, plaintiffs argue that the district court erred by

dismissing their claims against the defendants for violating their Due Process

rights by adopting procedures for enforcing the Vaccine Mandate that resulted in

the suspension and termination of DOE employees who refused to be vaccinated.

Plaintiffs also appeal the district court’s two previous denials of their motions for

preliminary injunctions to prevent the DOE from implementing and enforcing the

Vaccine Mandate. Finally, plaintiffs request leave from this Court to file a second

amended complaint, without challenging the district court’s denial of that same

1Whether the DOE is a non-suable agency of the City under section 396 of the New York City Charter is unclear. Compare Roman v. N.Y.C. Dep’t of Educ., 21-cv-6162 (JMF),

, at *1 (S.D.N.Y. Sept. 9, 2021) (treating DOE as non-suable), and Philippe v. N.Y.C. Dep’t of Educ., 11- cv-3693 (NGG),

, at *1 n.1 (E.D.N.Y. Oct. 3, 2012) (same), and Carpenter v. City of New York, 9-cv-4524 (ARR),

, at *4 (E.D.N.Y. June 30, 2010) (same), with Matson v. Bd. of Educ. of City Sch. Dist. of New York,

, 78 n.8 (2d Cir. 2011) (Straub, J., concurring in part) (suggesting that DOE is likely suable), and Eason-Gourde v. Dep’t of Educ., 14-cv-7359 (WFK) (VMS),

, at *1 (E.D.N.Y. Dec. 23, 2014) (treating DOE as suable), and Salinas v. City of New York,

, at *3 (N.Y. Sup. Ct. 2011) (same), and Montgomery- Costa v. City of New York,

(N.Y. Sup. Ct. 2009) (same). For purposes of this appeal, we need not decide the matter. Instead, we treat plaintiffs’ suit against the DOE as one against the City of New York.

4 request. We assume the parties’ familiarity with the underlying facts and

procedural history, to which we refer only as necessary to resolve the issues on

appeal.

We review the district court’s dismissal of plaintiffs’ claims de novo,

“accepting all factual allegations in the complaint as true, and drawing all

reasonable inferences in the plaintiff[s’] favor.” City of Pontiac Gen. Emps.’ Ret. Sys.

v. MBIA, Inc.,

(2d Cir. 2011) (internal quotation marks omitted).

We review a district court’s denial of a motion for preliminary injunction for abuse

of discretion. See Lynch v. City of New York,

(2d Cir. 2009). We

review de novo a district court’s denial of leave to amend based on futility. See City

of Pontiac Policemen’s and Firemen’s Ret. Sys. v. UBS AG,

(2d Cir.

2014).

In August 2021, the Commissioner of the New York City Department of

Health and Mental Hygiene issued an order requiring all DOE employees to show

proof of vaccination against COVID-19 by September 27, 2021. In response, the

defendant unions sought to negotiate the terms of the Vaccine Mandate to limit its

impact on their members. Those negotiations were unsuccessful, so the DOE and

two of the defendant unions – the United Federation of Teachers and the Council

5 of Supervisors and Administrators – agreed to enter binding arbitration, with

Martin Scheinman serving as the arbitrator. In mid-September, Scheinman issued

two largely identical arbitration awards. The remaining defendant union – District

Council 37 – reached an agreement with the DOE in early October that mirrored

Scheinman’s previous arbitration awards. Thus, all plaintiffs “were subject to

similar terms regarding the Vaccine Mandate procedures.” Broecker v. N.Y.C. Dep’t

of Educ.,

, 883 (E.D.N.Y. Nov. 24, 2021).

The arbitration awards (1) established a process for requesting religious and

medical exemptions and accommodations and appealing adverse determinations;

(2) provided options for employees to voluntarily separate from service with

certain compensation benefits or to elect an extended leave without pay (“LWOP”)

until September 5, 2022, during which period they would maintain health benefits;

and (3) authorized the DOE to unilaterally separate unvaccinated employees who,

as of December 1, 2021, had neither obtained an approved exemption or

accommodation, nor opted for separation or extended LWOP. See

; see

also J. App’x at 599–600, 614–16, 621–22.

On appeal, plaintiffs repeatedly assert that the DOE suspended and

terminated their employment “without due process.” Pls. Br. 4–9, 18–19, 37–38.

6 But the repetition of a legal conclusion does not state a claim. See Ashcroft v. Iqbal,

(2009) (“[T]he tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.”). To

allege a procedural due process violation, a plaintiff must plead facts plausibly

showing that he possessed a protected liberty or property interest and that he was

deprived of that interest without constitutionally sufficient process. See O’Connor

v. Pierson,

, 195–96 (2d Cir. 2005). Determining whether afforded

procedures are constitutionally sufficient requires the court to look to “[f]ederal

constitutional standards rather than state statutes.” Robison v. Via,

(2d Cir. 1987). Generally, procedures provide constitutional due process

where a plaintiff is given “a pre[-]termination opportunity to respond, coupled

with post-termination administrative procedures as provided by [state] statute.”

Cleveland Bd. of Educ. v. Loudermill,

, 547–48 (1985); see also Locurto v.

Safir,

(2d Cir. 2001) (“When [a tenured] public employee is

terminated, procedural due process is satisfied if the government provides notice

and a limited opportunity to be heard prior to termination, so long as a full

adversarial hearing is provided afterwards.”).

7 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, 573 F. Supp. 3d at 888.

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,

; see Loudermill,

n.12 (“[T]he existence of post-termination procedures is relevant to the necessary

scope of pre[-]termination procedures.”); Rivera-Powell v. New York City Bd. of

Elections,

(2d Cir. 2006) (indicating that an Article 78 proceeding

8 can provide due process in combination with “minimal” pre-deprivation

safeguards).

Rather than point to facts supporting their procedural due process claims,

plaintiffs fixate on the defendants’ alleged violations of state law when

implementing the Vaccine Mandate. In essence, plaintiffs contend that their

unions’ decisions to submit to arbitration regarding the Vaccine Mandate violated

New York Civil Service Law § 209.3(f), a statute that they argue stripped school

boards of the authority to unilaterally resolve union impasses. See

(f); Betts v. Hoosic Valley Teachers’ Ass’n,

, 649 (N.Y.

Sup. Ct. Apr. 15, 1976). Plaintiffs reason that because arbitration was, in their view,

unauthorized under section 209.3(f), the awards resulting from the arbitration

“were all procedurally illegal” and “violated [their] constitutional rights.” Pls. Br.

at 47, 51.

But aside from the fact that section 209.3(f) says nothing about whether

unions and school districts may agree to enter arbitration, the defendants’

compliance or noncompliance with state law is not dispositive of the federal claims

in this case. “When the minimal due process requirements of notice and hearing

have been met, a claim that an agency’s policies or regulations have not been

9 adhered to does not sustain an action for redress of procedural due process

violations.” McDarby v. Dinkins,

, 1337–38 (2d Cir. 1990) (internal

quotation marks omitted); see also Coles v. Erie County,

(2d Cir.

2015) (“[T]he question in a [section] 1983 suit claiming deprivation of a property

interest without due process is not whether state procedural law was correctly

followed or applied, but whether the process actually provided satisfies the

requirements imposed by the Constitution.”). Thus, plaintiffs’ central assertion –

that the defendants did not follow the proper state-law procedures when agreeing

to arbitration – is insufficient even if we accept it as true.

Insofar as plaintiffs claim that DOE violated their due process rights by

placing them on LWOP pursuant to the arbitration awards without following the

disciplinary procedures under New York Education Law section 3020-a and New

York Civil Service Law section 75, that argument at best challenges the results of

the arbitration and the sufficiency under state law of the procedures it established

to implement the Vaccine Mandate, which does not by itself state a federal claim.

Perhaps sensing the infirmity of their position, plaintiffs assert for the first

time in their reply brief that the medical and religious exemption process was a

“sham.” Reply Br. at 13. But we have made it clear that “[w]e will not consider

10 an argument raised for the first time in a reply brief.” United States v. Yousef,

(2d Cir. 2003). We therefore conclude that plaintiffs forfeited this

argument when they failed to assert it in their opening brief. See

at 115–16.

Plaintiffs also ask us to grant them leave to amend their complaint again,

but the district court denied their request for leave to file a second amended

complaint, and plaintiffs present no argument at all as to why that decision was

wrong. Instead, plaintiffs’ request merely “indicate[s] a desire to amend” while

failing “to make a showing that the complaint’s defects can be cured.” Porat v.

Lincoln Towers Cmty. Ass’n,

(2d Cir. 2006). We therefore deny the

request.

Plaintiffs clearly disagree with their unions’ decisions to arbitrate the

implementation of the Vaccine Mandate, a decision they insist exceeded the

authority of the unions and DOE under state law. But that is not enough to

establish a federal procedural due process violation. Because plaintiffs have

presented no facts that would call into question the adequacy of the pre- and post-

deprivation process afforded them, their federal due process claims – including

their derivative conspiracy claims and class claims – must be dismissed. To the

extent that any state-law claims remain, we decline to exercise supplemental

11 jurisdiction over those claims and dismiss them without prejudice. See

(c)(3); Kolari v. New York-Presbyterian Hosp.,

, 122 (2d Cir. 2006).

Finally, because the underlying claims have been dismissed, we deny as moot

plaintiffs’ challenges to the district court’s denials of their motions for a

preliminary injunction. See Ruby v. Pan Am. World Airways, Inc.,

, 691–

92 (2d Cir. 1966).

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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