Supreme Court, Kings County, December 22, 2022

Latonya Walker, petitioner pro se.

Sylvia O. Hinds-Radix, Corporation Counsel, New York City (David V. Holmes of counsel), for respondent.

By order to show cause and petition with accompanying documents filed on November 18, 2021, petitioner Latonya Walker, proceeding pro se, commenced the instant proceeding pursuant to CPLR article 78 against David A. Chokshi and Mitchell Katz seeking to annul a determination by the New York City Health and Hospitals Corporation, her employer, to place her on unpaid leave and then terminate her after granting her request for a religious exemption from the COVID-19 vaccination requirement. The New York City Health and Hospitals Corporation (hereinafter NYCHHC or respondent) interposed an answer and memorandum of law in opposition to the petition. The instant petition is hereby amended by substituting NYCHHC as the sole respondent.^[FN*]

The new caption as amended is as follows:

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Latonya Walker,

Petitioner,

-against-

New York City Health and Hospitals Corporation,

Respondent.

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Undisputed Facts

The following facts are undisputed as set forth in the petitioner's and the respondent's respective papers. The petitioner was employed by NYCHHC as a health care{**78 Misc 3d at 304} investigator (HCI) at the Henry J. Carter Specialty Hospital, one of NYCHHC's post-acute care facilities. During her employment, Walker was assigned to the Patient Accounts Department. In her capacity as a health care investigator, Walker was responsible for submitting medical claims to insurance companies and government payors for medical care provided to managed care patient residents.

On September 8, 2021, Walker submitted a request for a religious exemption and a reasonable accommodation from the COVID-19 vaccination requirement set forth in the New York State Order and Regulations through NYCHHC's online portal. On September 24, 2021, NYCHHC emailed Walker that her request for a religious exemption from the COVID-19 vaccination requirement had been granted. The religious exemption decision email further stated that the NYCHHC had conducted a review of Walker's job duties to determine if her essential job functions allowed for a reasonable accommodation to be granted.

Thereafter, NYCHHC made a determination that the petitioner's essential functions could not be performed remotely without imposing an undue operational burden. Instead, NYCHHC determined to provide Walker with a job-protected unpaid leave period during which her benefits also remained intact for a paid period of 60 days from September 27, 2021, through November 26, 2021. Walker was advised in writing that she had three options: (1) get vaccinated, (2) voluntarily resign with additional benefits, or (3) administrative separation. The religious exemption decision email further provided that prior to the expiration of Walker's approved leave of absence, NYCHHC would review her request to determine whether a continued accommodation of leave would pose an undue burden.

On November 16, 2021, NYCHHC emailed the petitioner informing her that no additional leave could be granted. NYCHHC advised the petitioner that she could voluntarily resign on or before December 31, 2021, but that she would need to make this decision by November 28, 2021. If the petitioner did not voluntarily resign, NYCHHC would separate her from employment on November 28, 2021. Petitioner did not elect to voluntarily resign and NYCHHC terminated her employment on November 28, 2021.

Law and Application

Petitioner seeks to annul NYCHHC's determination to accommodate her request for a religious exemption and reasonable{**78 Misc 3d at 305} accommodation by placing her on job-protected temporary unpaid leave and then offering her a chance to resign or be terminated.

As previously stated, the undisputed evidence establishes that on September 8, 2021, the petitioner made a request for a religious exemption and a reasonable accommodation from the COVID-19 vaccination requirement imposed by her employer, that is, the ability to work remotely. On September 24, 2021, the respondent notified the petitioner by an email that her request for a religious exemption had been granted. NYCHHC, however, did not grant her request to permit her to work remotely. Instead, NYCHHC's determination was to provide Walker with a job-protected unpaid leave period during which her benefits also remained intact for a paid period of 60 days from September 27, 2021, through November 26, 2021, as a temporary accommodation. On November 16, 2021, NYCHHC emailed the petitioner informing her that no additional leave could be granted. NYCHHC advised the petitioner that she could voluntarily resign on or before December 31, 2021, but that she would need to make this decision by November 28, 2021. If the petitioner did not voluntarily resign, NYCHHC would separate her from employment on November 28, 2021. Petitioner did not elect to voluntarily resign and NYCHHC terminated her employment on November 28, 2021.

Blanche Greenfield, the Deputy Counsel and Chief Employment Counsel of the New York City Health and Hospitals Corporation, interposed an answer on behalf of the respondent. The answer consisted of her affirmation and several annexed exhibits. Greenfield's affirmation averred certain facts in response to the petitioner's petition. Facts admitted by a party's pleadings constitute formal judicial admissions (Zegarowicz v Ripatti, 77 AD3d 650, 653 [2d Dept 2010], citing Falkowski v 81 & 3 of Watertown., 288 AD2d 890, 891 [4th Dept 2001]; Jerome Prince, Richardson on Evidence § 8-215 at 523-524 [Farrell 11th ed 1995]). Formal judicial admissions are conclusive of the facts admitted in the action in which they are made (Zegarowicz, 77 AD3d at 653, citing Coffin v Grand Rapids Hydraulic Co., 136 NY 655 [1893]).

Consequently, the following facts are admitted. During her employment, Walker was assigned to the Patient Accounts Department at Carter. Carter is one of the several NYCHHC post-acute care facilities also providing skilled nursing services to New York City residents. The Patient Accounts Department{**78 Misc 3d at 306} staff for the post-acute care facilities are centralized at Coler, which is another post-acute care and skilled nursing facility that has elderly and dependent residents (collectively PAC Patient Accounts Department). The PAC Patient Accounts Department is an essential aspect of NYCHHC's operations. In her capacity as HCI, Walker was responsible for submitting medical claims to insurance companies and government payors for medical care provided to managed care patient residents. This scope of duties required Walker's [*3]on-site presence at least some of the time. Especially, Walker would have needed to enter NYCHHC facilities to retrieve, sort, and scan documentation connected to the billing and claims that arrived by U.S. mail while also preparing and sending out certain claims and other documentation to insurance providers and government payors by U.S. mail. Moreover, these duties would have been tied to the account portfolios that were individually assigned to Walker and for which she was responsible. Prior to the COVID-19 pandemic's outbreak in March 2020, the PAC Patient Accounts Department did not conduct its operations on a remote basis.

When the COVID-19 pandemic began, NYCHHC allowed employees in the PAC Patient Accounts Department, as with other departments, to work from home on a temporary basis, particularly due to the extremely vulnerable population at NYCHHC PAC facilities. However, even at the early stages of the pandemic, some numbers of the PAC Patient Accounts Department were directed to work in person at NYCHHC facilities at various times, and as vaccine availability increased and more of the general population was vaccinated, NYCHHC is gradually transitioning persons working in the PAC Patient Accounts Department to work in the office on an increasing basis. At the present, no one in the PAC Patient Accounts Department is approved for completely remote work, all are required to report to work in person at least once a week, most employees are in the office at least three times per week and everyone is vaccinated.

After review, on November 16, 2021, NYCHHC Office of Equal Employment Opportunity (hereinafter NYCHHC OEEO) emailed the petitioner informing her that no additional leave could be granted. NYCHHC OEEO advised the petitioner that she could voluntarily resign from NYCHHC on or before December 31, 2021, but that she would need to make this decision by November 28, 2021. If the petitioner did not voluntarily{**78 Misc 3d at 307} resign, NYCHHC would separate her from employment on November 28, 2021. The petitioner did not elect to voluntarily resign and NYCHHC separated her from her employment at NYCHHC on November 28, 2021.

When, as here, an administrative determination is made where an evidentiary hearing is not required by law, this court's review is limited to whether the agency's determinations were made in violation of lawful procedure, were affected by error of law, or were arbitrary and capricious or an abuse of discretion (Matter of Ventresca-Cohen v DiFiore, 77 Misc 3d 652, 658 [Sup Ct, Albany County 2022], citing CPLR 7803 [3]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]).

In the instant special proceeding, there is no dispute that the NYCHHC OEEO granted the petitioner's request for a religious exemption from the respondent's mandatory COVID-19 vaccination requirements. There is also no dispute that NYCHHC OEEO's accommodation provided Walker with three options: (1) get vaccinated, (2) voluntarily resign with additional benefits, or (3) administrative separation.

Pursuant to both the New York State Human Rights Law (Executive Law § 296 [NYSHRL]) and the New York City Human Rights Law (Administrative Code of City of NY § 8-107 [NYCHRL]), the first step in providing a reasonable accommodation is to engage in a good-faith interactive process that assesses the needs of the individual and the reasonableness of the accommodation requested. The interactive process continues until, if possible, an accommodation reasonable to the employee and employer is reached (Hosking v Memorial Sloan-Kettering Cancer Ctr., 186 AD3d 58, 63 [1st Dept 2020]).

By its own admission, the respondent had already allowed some of the petitioner's co[*4]workers to work remotely part of the week so long as they come into the worksite at least one day a week. The respondent stated that the petitioner's work responsibility would have required that she enter NYCHHC facilities to retrieve, sort, and scan documentation connected to the billing and claims that arrived by U.S. mail while also preparing and sending out certain claims and other documentation to insurance providers and government payors by U.S. mail.

Would it have been unreasonable to set aside a designated space for the petitioner to appear, wearing appropriate personal{**78 Misc 3d at 308} protective equipment, to obtain the mail and sort and scan the documents assigned to her one day each week while she handled the rest of her assigned work remotely? Was any other option either explored or discussed with the petitioner? We cannot tell from the respondent's pleadings. What we can tell is that the respondent did not engage in a good-faith interactive process that assessed the needs of the petitioner and the reasonableness of the accommodation requested. Under both the NYSHRL and the NYCHRL, the interactive process should have occurred and continued until, if possible, an accommodation reasonable to the employee and employer could be reached (Hosking v Memorial Sloan-Kettering Cancer Ctr., 186 AD3d 58, 63 [1st Dept 2020]). By not doing so, the respondent violated both the NYSHRL and the NYCHRL. The respondent's determination to give the petitioner a short period of unpaid protected leave followed by the choice of either resigning with some additional benefits or being terminated as an accommodation of her religious exemption was both arbitrary and capricious.

Conclusion

The petition of Latonya Walker seeking to annul the respondent New York City Health and Hospitals Corporation's determination to place the petitioner on unpaid leave and then terminate her is granted.

The respondent New York City Health and Hospitals Corporation is directed to reinstate the petitioner Latonya Walker to her prior position and title. Furthermore, upon reinstatement the respondent New York City Health and Hospitals Corporation is directed to engage the petitioner Latonya Walker in the interactive process to assess the needs of the petitioner and the reasonableness of the accommodation requested.

The petitioner Latonya Walker is awarded back pay retroactively from the date the unpaid leave began to the date of this order.