Preview
FILED: NEW YORK COUNTY CLERK 11/21/2022 03:33 PM INDEX NO. 157658/2022
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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RAMON CEPEDA,
Petitioner, VERIFIED ANSWER
For a Judgment pursuant to Article 78 Index No. 157658/2022
-against-
THE CITY OF NEW YORK, THE NEW YORK CITY
POLICE DEPARTMENT, SERGEANTS BENEVOLENT
ASSOCIATION OF THE CITY OF NEW YORK, INC.,
ERIC ADAMS, in his official capacity, ASHWIN VASAN, in
his official capacity,
Respondents.
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Respondents, City of New York (“City”), the New York City Police Department
(“NYPD”), Eric Adams, and Ashwin Vasan, by their attorney, Hon. Sylvia O. Hinds-Radix,
Corporation Counsel of the City of New York, hereby submit their Verified Answer to the
Petition, and respectfully allege as follows:
1. ADMIT the allegations in paragraph “1” of the Petition and respectfully
refer the Court to the “Order of the Commissioner of Health and Mental Hygiene to Require
COVID-19 Vaccination for City Employees and Certain City Contractors,” dated October 20,
2021 (hereafter “City Order.”) See https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-
19-vaccination-requirement-city-employees.pdf.
2. DENY the allegations in paragraph “2” of the Petition.
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3. DENY the allegations in paragraph “3” of the Petition, except ADMIT
that Petitioner purports to be challenging the denial of his “Reasonable Accommodation Request
for Employees” (hereafter “RA Request”).
4. DENY the allegations in paragraph “4” of the Petition.
5. DENY the allegations in paragraph “5” of the Petition.
6. DENY the allegations in paragraph “6” of the Petition.
7. DENY the allegations in paragraph “7” of the Petition, except ADMIT
that Petitioner purports to proceed as set forth therein.
8. DENY the allegations in paragraph “8” of the Petition, except ADMIT
that Petitioner is employed as a Sergeant with the NYPD.
9. ADMIT the allegations in paragraph “9” of the Petition.
10. ADMIT the allegations in paragraph “10” of the Petition.
11. Deny knowledge or information sufficient to form a belief as to the truth
of the allegations set forth in Paragraph “11” of the Petition.
12. DENY the allegations in paragraph “12” of the Petition, except ADMIT
that Respondent Eric Adams in the Mayor of the City of New York.
13. ADMIT the allegations in paragraph “13” of the Petition.
14. DENY the allegations set forth in paragraph “14” of the Petition, except
ADMIT that Petitioner is invoking the subject matter jurisdiction of this Court.
15. DENY the allegations set forth in paragraph “15” of the Petition, except
ADMIT that City Respondents have offices in New York County.
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16. DENY knowledge or information sufficient to form a belief as to the truth
the allegations in paragraph “16” of the Petition, except ADMIT that Petitioner is employed as a
Sergeant with the NYPD and that he is subject to the requirements set forth in the City Order.
17. DENY the allegations in paragraph “17” of the Petition, except ADMIT
that Petitioner is subject to the requirements set forth in the City Order and respectfully refer the
Court to Exhibit “2” of the Petition for the complete and accurate contents thereof.
18. DENY the allegations in paragraph “18” of the Petition, except ADMIT
that Petitioner is employed as a Sergeant with the NYPD..
19. DENY the allegations in paragraph “19” of the Petition, and respectfully
refer to the Court to the City Order attached to the Petition as Exhibit 2, for a complete and
accurate statement of the contents thereof.
20. DENY the allegations in paragraph “20” of the Petition, and respectfully
refer the Court to the “COVID-19 Testing Frequently Asked Questions,” attached to the Petition
as Exhibit 3, for a complete and accurate statement of the contents thereof.
21. DENY the allegations in paragraph “21” of the Petition, and respectfully
refer the Court to the “COVID-19 Testing Frequently Asked Questions,” attached to the Petition
as Exhibit 3, for a complete and accurate statement of the contents thereof.
22. DENY the allegations in paragraph “22” of the Petition, and respectfully
refer the Court to the “COVID-19 Testing Frequently Asked Questions,” attached to the Petition
as Exhibit “3”, for a complete and accurate statement of the contents thereof.
23. DENY the allegations in paragraph “23” of the Petition, except ADMIT
that Petitioner submitted a Reasonable Accommodation Request on or about September 7, 2021,
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and Respondents respectfully refer the Court to the RA Request for a complete and accurate
statement of its contents, and ADMIT that Petitioner submitted an Appeal to on October 16,
2021 and another Appeal on October 21, 2021, and respectfully refer the Court to the documents
referenced therein for a complete and accurate statement of their contents.
24. DENY the allegations in paragraph “24” of the Petition.
25. DENY the allegations in paragraph “25” of the Petition and respectfully
refer the Court to the Previous Religious Accommodation attached to the Petition as Exhibit “4”,
for a complete and accurate statement of the contents thereof.
26. DENY the allegations in paragraph “26” of the Petition, except ADMIT
that on October 21, 2021, Petitioner submitted a “Reasonable Accommodation Request For
Employees” form and respectfully refer the Court to Petitioner’s October 21, 2021 request for
the complete and accurate contents thereof.
27. DENY the allegations in paragraph “27” of the Petition.
28. DENY the allegations in paragraph “28” of the Petition, and respectfully
refer the Court to the case cited therein for the contents thereof.
29. DENY the allegations set forth in paragraph “29” of the Petition, and
respectfully refer the Court to the case referenced therein for the contents thereof.
30. DENY the allegations in paragraph “30” of the Petition, and respectfully
refer the Court to the documents cited therein for the complete and accurate contents thereof.
31. DENY the allegations in paragraph “31” of the Petition.
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32. DENY the allegations in paragraph “32” of the Petition, except ADMIT
that City employees whose reasonable accommodation requests denied by their agency had the
opportunity to appeal that denial to the Citywide Appeals Panel.
33. DENY the allegations in paragraph “33” of the Petition, except ADMIT
that Petitioner submitted an Appeal on or about February 9, 2022 and respectfully refer the Court
to Petitioner’s Appeal, attached to the Petition as Exhibit 6, for a complete and accurate
statement of its contents thereof.
34. DENY the allegations in paragraph “34” of the Petition, and respectfully
refer the Court to the documents cited therein for complete and accurate statements of their
contents thereof.
35. DENY the allegations in paragraph “35” of the Petition
36. Respondents re-allege and incorporate their responses to paragraphs “1”
through “35” as set forth above.
37. DENY the allegations in paragraph “37” of the Petition, and respectfully
refer the Court to CPLR 7803 and the case cited therein for the contents thereof.
38. DENY the allegations in paragraph “38” of the Petition.
39. DENY the allegations in paragraph “39” of the Petition, and respectfully
refer the Court to the case cited therein for the contents thereof.
40. DENY the allegations in paragraph “40” of the Petition, and respectfully
refer the Court to the case cited therein for a complete and accurate statement of its contents
thereof.
41. DENY the allegations in paragraph “41” of the Petition.
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42. DENY the allegations in paragraph “42” of the Petition.
43. DENY the allegations in paragraph “43” of the Petition, and respectfully
refer the Court to the case cited therein for the contents thereof.
44. DENY the allegations in paragraph “44” of the Petition, and respectfully
refer the Court to the case referenced therein for a complete and accurate statement of its
contents thereof.
45. DENY the allegations in paragraph “45” of the Petition, and respectfully
refer the Court to the case cited therein for the contents thereof.
46. DENY the allegations in paragraph “46” of the Petition. Respondents
otherwise state the allegations in paragraph 46 consist of legal opinions to which no responsive
pleading is required, and respectfully refer the Court to the case cited therein for the contents
thereof.
47. Respondents re-allege and incorporate their responses to paragraphs
“1”through “46” as set forth above.
48. DENY the allegations in paragraph “48” of the Petition, and respectfully
refer the Court to the New York City Human Rights Law (“CHRL”) and the case cited therein
for the contents thereof.
49. DENY the allegations in paragraph “49” of the Petition, and respectfully
refer the Court to the cases cited therein for the contents thereof.
50. DENY the allegations in Paragraph “50” of the Petition, and refer the
Court to the CHRL for the contents thereof.
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51. DENY the allegations in paragraph “51” of the Petition, and respectfully
refer the Court to Exhibit “3” of the Petition cited therein for complete and accurate statements
of their contents thereof.
52. DENY the allegations in paragraph “52” of the Petition.
53. DENY the allegations in paragraph “53” of the Petition, and respectfully
refer the Court to the CHRL for the contents thereof.
54. DENY the allegations set forth in Paragraph “54” of the Petition, and
respectfully refer the Court to the cases cited therein for the contents thereof.
55. DENY the allegations set forth in Paragraph “55” of the Petition, and
respectfully refer the Court to the CHRL for the contents thereof.
56. DENY the allegations set forth in Paragraph “56” of the Petition and
respectfully refer the case cited therein, for a complete and accurate statement of its contents
thereof.
57. DENY the allegations in paragraph “57” of the Petition.
58. DENY the allegations in paragraph “58” of the Petition, and respectfully
refer the Court to the case cited therein for the contents thereof.
59. DENY the allegations in paragraph “59” of the Petition, and respectfully
refer the Court to the CHRL for the contents thereof.
60. DENY the allegations in paragraph “60” of the Petition.
61. Respondents re-allege and incorporate their responses to paragraphs “1”
through “60” as set forth above.
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62. DENY the allegations in paragraph “62” of the Petition, and respectfully
refer the Court to the Citywide Equal Employment Opportunity Policy Handbook cited therein
for the contents thereof.
63. ADMIT the allegations in paragraph “63” of the Petition, and respectfully
refer the Court to the Citywide Equal Employment Opportunity Policy Handbook cited therein
for the contents thereof.
64. DENY the allegations in paragraph “64” of the Petition, and respectfully
refer the Court to the City of New York, Office of the Mayor, Executive Order No. 78, dated
August 31, 2021 (“Executive Order 78”), for the contents thereof.
65. DENY the allegations in paragraph “65” of the Petition, and respectfully
refer the Court to the City Order referenced therein for the contents thereof.
66. DENY the allegations in paragraph “66” of the Petition.
67. DENY the allegations in paragraph “67” of the Petition, and respectfully
refer the Court to the CHRL for the contents thereof.
68. DENY the allegations in paragraph “68” of the Petition.
69. DENY the allegations in paragraph “69” of the Petition, and respectfully
refer the Court to the document cited therein for complete and accurate statements of their
contents thereof.
70. DENY the allegations in paragraph “70” of the Petition, and respectfully
refer the Court to the document cited therein for the contents thereof.
71. DENY the allegations in paragraph “71” of the Petition, and respectfully
refer the Court to the document cited therein for the contents thereof.
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72. DENY the allegations in paragraph “72” of the Petition, and respectfully
refer the Court to the document cited therein for the contents thereof.
73. DENY the allegations in paragraph “73” of the Petition.
74. DENY the allegations in paragraph “74” of the Petition.
75. DENY the allegations in paragraph “75” of the Petition.
76. DENY the allegations in paragraph “76” of the Petition, and respectfully
refer the Court to the document cited therein for the contents thereof.
77. DENY the allegations in paragraph “77” of the Petition.
78. Respondents re-allege and incorporate their responses to paragraphs “1”
through “77” as set forth above.
79. DENY the allegations in paragraph “79” of the Petition.
80. Paragraph “80” of the Petition consists of legal conclusions to which no
responsive pleading is required, and refer to the case cited therein for the contents thereof.
81. DENY the allegations in Paragraph “81” of the Petition, and refer to the
statute cited therein for the contents thereof.
82. DENY the allegations in paragraph “82” of the Petition.
83. DENY the allegations in paragraph “83” of the Petition, and respectfully
refer the Court to the authority cited therein for the contents thereof.
84. DENY the allegations in paragraph “84” of the Petition, and respectfully
refer the Court to the cases cited therein for the contents thereof.
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85. DENY the allegations in paragraph “85” of the Petition, and respectfully
refer the Court to the Reasonable Accommodation Procedural Guidelines cited therein for the
contents thereof.
86. DENY the allegations in paragraph “86” of the Petition, and respectfully
refer the Court to the Reasonable Accommodation Procedural Guidelines cited therein for the
contents thereof.
87. DENY the allegations in paragraph “87” of the Petition, and respectfully
refer the Court to the Reasonable Accommodation Procedural Guidelines cited therein for the
contents thereof.
88. DENY the allegations in paragraph “88” of the Petition.
89. DENY the allegations in paragraph “89” of the Petition, and respectfully
refer the Court to the cases cited therein for the contents thereof.
90. DENY the allegations in paragraph “90” of the Petition, and respectfully
refer the Court to the case cited therein for the contents thereof.
91. DENY the allegations in paragraph “91” of the Petition, and respectfully
refer the Court to the case cited therein for the contents thereof.
92. DENY the allegations in paragraph “92” of the Petition.
93. Respondents re-allege and incorporate their responses to paragraphs “1”
through “92” as set forth above.
94. DENY the allegations set forth in paragraph “94” of the Petition, and
respectfully refer the Court to the New York State Constitution for a complete and accurate
statement of its contents thereof.
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95. DENY the allegations in paragraph “95” of the Petition.
96. DENY the allegations in paragraph “96” of the Petition.
97. DENY the allegations in paragraph “97” of the Petition.
98. DENY the allegations in paragraph “98” of the Petition.
99. DENY the allegations in paragraph “99” of the Petition.
100. DENY the allegations in paragraph “100” of the Petition.
101. DENY the allegations in paragraph “101” of the Petition.
102. DENY the allegations in paragraph “102” of the Petition.
103. DENY the allegations in paragraph “103” of the Petition.
104. DENY the allegations in paragraph “104” of the Petition.
FOR A STATEMENT OF PERTIENT AND MATERIAL FACTS, RESPONDENTS
RESPECTFULLY ALLEGE:
105. On October 20, 2021, then Commissioner of the New York City
Department of Health and Mental Hygiene (“DOHMH”), Dr. David Chokshi, issued the City
Order, requiring all City employees to show proof of at least one dose of vaccination against
COVID-19 by 5:00 p.m. on October 29, 2021. See
https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-vaccination-requirement-city-
employees.pdf.
106. The City Order states, in pertinent part, that by October 29, 2021, City
employees must provide proof to the agency or office where they work that: (1) they have been
fully vaccinated against COVID-19; or (2) they have received a single-dose COVID-19 vaccine,
even if two weeks have not passed since they received the vaccine; or (3) they have received the
first dose of a two-dose COVID-19 vaccine. The City Order required that any City employee not
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providing the above-described proof must be excluded from their assigned work location
beginning on November 1, 2021. Id. at 3 ¶¶2-3.
107. The City Order specifically provided that “Nothing in this Order shall be
construed to prohibit any reasonable accommodation otherwise required by law.” Id. at 5, ¶8.
The City’s Process with Respect to COVID-19 Reasonable Accommodation
Requests
108. In response to the City Order, the City established additional procedures
specific to requests for vaccination-related accommodations in an effort to address the
anticipated increase in accommodation requests that would be made by City employees. See
Affirmation of Eric Eichenholtz, at 2, ¶4. These procedures specified that an accommodation
request was to be submitted by an employee to their agency’s EEO officer on or before October
27, 2021. Id. Any employee who is denied an accommodation by their agency has the right to
appeal that denial to the City of New York Reasonable Accommodation Appeals Panel
(“Citywide Panel”). Id.
109. The Citywide Panel was created specifically in response to the City Order
to consider appeals filed by employees whose accommodation requests had been denied by their
respective agency. Id. ¶5.
110. The purpose of the Citywide Panel is to ensure that employees who are
denied an accommodation request can have their appeals heard and considered consistent with
the standards established by the Americans with Disabilities Act (“ADA”), Title VII of the Civil
Rights Act of 1964 (“Title VII”), the New York State Human Rights Law, and the New York
City Human Rights Law. Id. ¶6. The Citywide Panel evaluates appeals under the standards set by
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those laws and consistent with the guidance issued by the U.S. Equal Employment Opportunity
Commission (“EEOC”) to assist employers in implementing COVID-19 related strategies
compliant with Title VII and the ADA. This EEOC guidance specifically addresses
accommodation requests made in response to an employer-issued vaccine mandate. Id.
111. The Citywide Panel is comprised of representatives from the Office of the
Corporation Counsel (“Law Department”), the New York City Department of Citywide
Administrative Services (“DCAS”), the New York City Department of Health and Mental
Hygiene (“DOHMH”) and the City Commission on Human Rights (“CCHR”). Id. ¶7. The
composition of the Citywide Panel was specifically designed to utilize the extensive subject
matter expertise and knowledge-base of individuals employed at these City agencies with respect
to medical and religious accommodation requests. Id.
112. Furthermore, in order to tailor the Citywide Panel to best evaluate
accommodation requests, the composition of the Citywide Panel that considers a particular
request changes depending on the nature of the request. Id. ¶8. When the appeal concerns a
request for a medical accommodation, the Law Department, DCAS and DOHMH panel members
consider the appeal. Id. If the appeal concerns a request for an accommodation based on a
religious need, the Law Department, DCAS and CCHR consider the appeal. Id.
113. Each case is reviewed by three Panel members (one Panel member from
each applicable agency). Id. ¶9. As detailed below, following a thorough review of the appeal,
each Panel member exercises their agency’s vote on that particular appeal. Each agency may
vote to affirm the denial of the accommodation or to reverse the agency decision and grant the
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accommodation. Id. When there is disagreement amongst the three agencies concerning the
outcome, the majority rules. Id.
114. Each agency separately reviews each request, although the panel members
can confer if they deem it necessary. Id. ¶10. Once all three agencies have voted, either Eric
Eichenholtz or the General Counsel of DCAS, Sanford Cohen, will perform a final review of the
case for quality assurance purposes and finalize the case. Id. Once the case is finalized, the
agency and employee are notified of the appeals panel decision. Id.
115. Prior to reaching the appellate level, with respect to agency-level denials,
all City employees who are denied a vaccine mandate accommodation by their agency are
provided with written information on the appeals process, including a link to the City’s online
appeals request portal: www.nyc.gov/vaxappeal. Id. ¶11. An employee may submit an appeal via
the online review request portal, which will automatically notify their agency EEO Officer of the
appeal. Id. Upon notification of the appeal, the agency’s EEO Office will upload all records
concerning the agency’s denial of the accommodation request within one business day. Id.
116. Once the Citywide Panel is in receipt of an appeal, it is reviewed to
determine whether supplemental information is necessary from either the agency or the
employee in order to make a determination on the appeal. If such information is necessary, the
Panel makes that request to the agency, the employee or both. Id. ¶12.
117. The applicable panel members then review all the materials provided by
the agency and the employee. In so reviewing, the Panel utilizes the below-described standards
which comport with city, state and federal law. Id. ¶13.
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118. With respect to religious accommodation requests, Title VII requires
employers to accommodate only those religious beliefs that are “sincerely held” and directly
conflict with the City Order. In accordance with EEOC guidance, employers may request that an
employee explain the religious nature of their belief and the Citywide Panel and/or a City agency
may therefore make this request of an employee. Additionally, if the City has an objective basis
for questioning either the religious nature or the sincerity of a particular belief or practice, the
City is justified in seeking additional supporting information. The Citywide Panel also relies
upon the EEOC’s guidance with respect to evaluating those “factors that – either alone or in
combination – might undermine an employee’s assertion that he sincerely holds the religious
belief at issue [which] include: whether the employee has behaved in a manner markedly
inconsistent with the professed belief; whether the accommodation sought is a particularly
desirable benefit that is likely to be sought for secular reasons; whether the timing of the request
renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for
secular reasons); and whether the employer otherwise has reason to believe the accommodation
is not sought for religious reasons.” Id. at ¶14.
119. Importantly, the Panel must also consider whether the employee’s
religious belief, in fact, conflicts with the COVID-19 vaccine mandate. This issue often arises
when the religious accommodation request is based on a sincerely held religious belief that could
prevent the use of any product that contain cells of aborted fetuses or fetal cells. If the employee
has established a sincerely held religious belief, the Citywide Panel will then review whether the
record supports the assertion that the taking of a COVID-19 vaccine conflicts with that sincerely
held religious belief as it is practiced by the employee. If there is no factual support for that
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assertion, or the belief as the employee describes it does not present a conflict in fact, there
would likely not be a basis for the requested accommodation. Id. ¶15.
120. The Citywide Panel also considers whether the requested religious
accommodation presents an undue hardship on City operations. EEOC guidance provides that
requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an
employee’s religious belief is an undue hardship. Id. ¶16.
121. Finally, as to religious accommodations, it is important to note that Title
VII and other anti-discrimination laws do not protect social, political, or economic views, or
personal preferences. As per the EEOC’s Guidance, “objections to COVID-19 vaccination that
are based on social, political, or personal preferences, or on nonreligious concerns about the
possible effects of the vaccine, do not qualify as ‘religious beliefs’ under Title VII.” The
Citywide Panel will review the record in order to determine whether the source of the
employee’s objection to vaccination is religious in nature or, in contrast, arises from personal or
other non-religious preferences. Id. ¶17.
122. It is with these guiding principles in mind that the Citywide Panel
considers each and every appeal put before it. Once the panel members have had sufficient time
to review all materials provided, each agency votes as to whether to affirm the denial or grant the
requested accommodation. Id. ¶18.
123. Prior to voting on an appeal, any Citywide Panel member may request that
the request be remanded back to the agency. This request is not subject to a vote. Any request by
a Panel member for a remand results in a request being sent to the agency for further review or
continued cooperative dialogue at the agency level. A Panel member may remand back to the
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agency in advance of a vote for a multitude of reasons, including because: (1) information is
missing from the record on appeal; (2) the agency appeared to have overlooked information that
had been previously submitted; (3) the employee raised a new matter for the first time on appeal
that merits agency review; or (4) the Panel member believes additional cooperative dialogue
between the agency and employee is needed to better understand the employee’s request. Again,
these remands are designed to ensure that the employee’s request for an accommodation is
accorded all reasoned consideration and attention under the circumstances. Id. ¶19.
124. In the event an appeal is granted, the employee and the agency are
promptly notified of that decision and the agency is instructed to implement the accommodation.
When an appeal is granted, the agency and the employee are not provided with a written
justification for why the appeal was granted. Id. ¶20.
125. In the event an appeal is denied, the employee is notified in writing of that
decision. The decision issued by the Citywide Panel does not provide a detailed justification as to
the reasons for the denial. This comports with applicable local, state and federal law, which does
not require an employer to provide an employee with a written justification as to why the
accommodation was denied. See N.Y.C. Admin. Code § 8-107(28)(d) (“Upon reaching a final
determination at the conclusion of a cooperative dialogue pursuant to paragraphs (a) and (c) of
this subdivision, the covered entity shall provide any person requesting an accommodation who
participated in the cooperative dialogue with a written final determination identifying any
accommodation granted or denied.”). Id. See also Eichenholtz Affirmation, ¶21.
126. The above-described process is uniform for all City agencies and
employees, including NYPD employees. Id. ¶22.
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The NYPD’s Review of Reasonable Accommodation Requests Based on Religious Reasons
127. The NYPD’s Reasonable Accommodations Unit (“RA Unit”) processes
requests for accommodations from members of the service based on both disability and religion.
The RA Unit is composed of seven full-time staff members who regularly process reasonable
accommodation requests. Normally, the RA Unit receives approximately 200 requests per
month. See Aff. Michael Melocowsky, ¶4, filed in Police Benevolent Assn. of the City of New
York v. DeBlasio, No. 160674/2021 (Sup. Ct., N.Y. Co.) (NYSCEF Doc. 26, filed Dec. 9, 2021),
attached to the Linnane Affirmation as Exh. A.1
128. A day after the City Order was issued, on October 21, 2021, DCAS issued
guidance, which included the “FAQ on New York City Employees Vaccine Mandate” an