NYC must reinstate 10 Dept. of Education employees fired for refusing COVID vaccine, judge rules

Ten employees fired by the New York City Department of Education for refusing the COVID-19 vaccine must be reinstated with back pay, a state Supreme Court judge ruled this week — one day before students returned for the first day of class.

The decision, handed down Wednesday by Judge Ralph J. Porzio, found a denial of "religious accommodation," writing: "This Court sees no rational basis for not allowing unvaccinated classroom teachers in amongst an admitted population of primarily unvaccinated students," adding that "the decision to summarily deny" those teachers the ability to continue in their jobs based on the criteria was "arbitrary, capricious, and unreasonable."

The case, DiCapua v. City of New York, was sponsored by the Children's Health Defense, a nonprofit whose stated mission is "to end childhood health epidemics by working aggressively to eliminate harmful exposures, hold those responsible accountable and establish safeguards to prevent future harm."

The suit was filed in Staten Island on Feb. 11 on behalf of the 10 plaintiffs, with Stephanie DiCapua as the lead plaintiff in the case. DiCapua is a former Westhampton Beach tennis player living in Staten Island who elected not to get vaccinated due to what the lawsuit cited as "sincerely held religious beliefs."

The suit said as a result of that decision, DiCapua was "denied reasonable accommodation, suspended, then terminated from her position" on Feb. 18, 2022.

The suit is related to Kane v. de Blasio, which involved one of the 10 petitioners, Michael Kane. That suit is pending in the Second Circuit Court of Appeals.

In a statement following the decision, the lead attorney in both cases, Sujata Gibson, called the decision "a precedent-setting victory" and said it "leaves the door open to future relief for thousands of teachers negatively affected by the vaccine requirement" imposed by the City of New York under the administration of Mayor Bill de Blasio.

But Kane, a nondenominational Buddhist and founder and president of Teachers for Choice, who was terminated from his position as a special-education teacher after refusing to get a COVID vaccination, said in a statement: "While it's an important step in the right direction, justice for only ten of us doesn't even scratch the surface of the injustice suffered by NYC workers as a result of this illegal mandate."

A City Hall spokesman said the city is reviewing the court's ruling. 

This week also saw the filing of exhibits in another case related to the COVID-19 pandemic shutdown of in-person classes, with students involved in a class action suit against St. John's University citing "breach of contract," as well as "unjust enrichment" — alleging they had to pay fees for services they could not access during the lockdown.

As reported by the New York Law Journal, the suit, filed in 2020 in the Eastern District of New York, alleged that while "partial refunds" of tuition charges "will not replace the lost on-campus experience" for students at the university, it would provide "some financial relief" for students named.

Two of the three students who brought the suit, Shiv Patel and Jamie Posner, are described in those court papers as residents of Nassau County.

“As a general policy, St. John's University does not comment on matters in litigation," said Brian Browne, a St. John's University spokesperson.

With Matthew Chayes

By John Valenti

john.valenti@newsday.com

John Valenti, a reporter at Newsday since 1981, has been honored nationally by the Associated Press and Society of the Silurians for investigative, enterprise and breaking news reporting, as well as column writing, and is the author of “Swee'pea,” a book about former New York playground basketball star Lloyd Daniels. Valenti is featured in the Emmy Award-winning ESPN 30-for-30 film “Big Shot.”