Exhibit,Appendix: xxxxxxx xxxxxxxxxx v. The New York City Police Department, The City Of New York

On September 16, 2022 a Exhibit,Appendix was filed involving a dispute between Xxxxxxx Xxxxxxxxxx, and The City Of New York, The New York City Police Department, for Special Proceedings - CPLR Article 78 in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 11/23/2022 02:27 PM INDEX NO. 157990/2022
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/23/2022

EXHIBIT 8
FILED: NEW YORK COUNTY CLERK 11/23/2022 02:27 PM INDEX NO. 157990/2022
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/23/2022

SUPREME COURT OF THE STATE OF NEW YORK

::^::::):Yl:T ...............x
In the Matter of the Application of

xxxxxxx xxxxxxxxxx, AFFIRMATION OF
ERIC J. EICHENHOLTZ

Petitioner,
Index No. 15799012022
For a Judgment pursuant to Article 78 ofthe Civil Practice Law
and Rules

-against-

THE NEW YORK CITY POLICE DEPARTMENT ANd THE
CITY OF NEW YORK,

Respondents.

ERIC J. EICHENHOLTZ, an attorney admitted to practice before the Courts of

the State of New York, affirms, pursuant to the Civil Practice Law and Rules ("CPLR") and under

penalty of perjury, that the following is true and correct:

l. I am the Chief Assistant Corporation Counsel for Employment Policy and

Litigation within the New York City Office of the Corporation Counsel. I have held this position

since October 4,2021.In this capacity,I oversee the Law Department's Labor and Employment

Law, Affirmative Litigation, Worker's Compensation and E-Discovery Divisions' I also provide

legal advice and counsel to City agencies and officials in employment matters. Prior to October 4,

2021,I served as the Chief of the Labor and Employment Law Division within the Office of the

Corporation Counsel. As Chief of the Labor and Employment Law Division I oversaw all litigation

brought against the city arising out of the city's role as an employer.
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Z. This Affirmation is based on my own personal knowledge, as well as the

employees of the
books and records of the City ofNew York, and statements made to me by other

City of New York.

Backeround Information on the Citvwide Panel

3. On October 20,202I,Commissioner of the New York City Department of

Health and Mental Hygiene (,'DOHMH") Dave A. Chokshi, M.D., issued an order
requiring all

City employees to show proof of at least one dose of a vaccination against COVID-l9 by 5:00

p.m. on October 29,2021(the "City Order").

4. In response to the City Order, the City established additional procedures
the anticipated
specific to requests for vaccination-related accommodations in an effort to address

These procedures
increase in accommodation requests that would be made by City employees.

their agency's
specified that anaccommodation request was to be submitted by an employee to
by
EEO Officer on or before October 27,2O2L Any employee who is denied an accommodation

their agency has the right to appeal that denial to the City of New York Reasonable

Accommodation Appeals Panel ("Citywide Panel")'

5. The Citywide Panel was created specifically in response to the City Order

denied by their
to consider appeals filed by employees whose accommodation requests had been

respective agency.

6. The purpose of the Citywide Panel is to ensure that employees who are

denied an accommodation 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, andthe New York City

set by those laws
Human Rights Law. The citywide panel evaluates appeals under the standards

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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'

7. The Citywide Panel is comprised of representatives from the Office of the

corporation counsel ("Law Department"), the New York city Department of citywide

Hygiene
Administrative Services ("DCAS"), the New York City Department of Health and Mental

(,,DOHMH") and the city commission on Human Rights ("ccHR"). The composition of the
and
Citywide panel was specifically designed to utilize the extensive subject matter expertise

knowledge-base of individuals employed at these City agencies with respect to medical and

religious accommodation requests.

8. Furthermore, in order to tailor the Citywide Panel to best evaluate
a particular request
accommodation requests, the composition of the Citywide Panel that considers

request for a medical
changes depending on the nature of the request. When the appeal concerns a

consider the appeal'
accommodation, the Law Department, DCAS and DoHMH panel members

Law
If the appeal concerns a request for an accommodation based on a religious need, the

Department, DCAS and CCHR consider the appeal'

g. Each case is reviewed by three Panel members (one Panel member from

each applicable agency). As detailed below, following a thorough review of the appeal, each Panel

member exercises their agency's vote on the Citywide Appeal for that
particular appeal' Each

agency may vote to affirm the denial of the accommodation or to reverse
the agency decision and

concerning the
grant the accommodation. when there is disagreement amongst the three agencies

outcome, the majoritY rules.

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10. Each agency separately reviews each request, although the Panel members

or the
can confer if they deem it necessary. once all three agencies have voted, either myself

General counsel of DCAS, sanford cohen, will perform a final review of the case for quality

assurance pu{poses and finalize the case. Once the case is finalized,
the agency and employee are

notified of the appeals panel decision.

l l. 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

appeal via the online review
request portal: www.nyc.sov/vaxappeal. An employee may submit an

request portal, which will automatically notiff their agency EEO Officer of the appeal' Upon

concerning the agency's
notification of the appeal, the agency's EEo office will upload all records

day.
denial of the reasonable accommodation request within one business

12. Once the Citywide Panel is in receipt of an appeal, it is reviewed to
the agency or the employee
determine whether supplemental information is necessary from either

the Panel makes
in order to make a determination on the appeal. If such information is necessary,

that request to the agency, the employee or both'
by the
13. The applicable panel members then review all the materials provided

standards which
agency and the employee. In so reviewing, the Panel utilizes the below-described

comport with city, state and federal law.

14. With respect to religious accommodation requests, Title VII requires
o'sincerely held" and directly
employers to accommodate only those religious beliefs that are
may request that an
conflict with the City Order. In accordance with EEOC guidance, employers
Panel andlor a City agency
employee explain the religious nature of their belief and the Citywide

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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'ofactors 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."

See e.g.,https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#:ftnreflS.

15. Importantly, the Panel must also consider whether the employee's religious

belief, in fact, conflicts with the COVID-l9 vaccine mandate. This issue often arises when the

religious accommodation request is based on a 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-l9 vaccine conflicts with that sincerely held religious belief as it is

practiced by the employee. If there is no factual support for that assertion, or if the belief as the

employee describes it does not present a conflict in fact, there would likely not be a basis for a

reasonable accommodation.

16. The Citywide Panel also considers whether the requested religious

accommodation presents an undue hardship on City operations. EEOC guidance provides that

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FILED: NEW YORK COUNTY CLERK 11/23/2022 02:27 PM INDEX NO. 157990/2022
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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.

17. 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-l9 vaccination that are

based on social, political, or personal preferences, or on nonreligious concerns about the possible

effects of the vaccine, do not qualiff 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.

18. 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.

19. 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

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,

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these remands are designed to ensure that the employee's request for an accommodation is

accorded all reasoned consideration and attention under the circumstances. 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.

20. 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.

21. 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(28Xd) ("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.").

22. The above-described process is uniform for all City agencies and

employees, including NYPD employees.

Petitioner's Appeal to the Citvwide Panel

23. On October 26,2021, Petitioner submitted a Vaccine Exemption Request.
o'Religious Beliefs/Practices."
The basis of Petitioner's Vaccine Exemption Request was

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24. On November 30, 2021, the NYPD informed Petitioner that his Vaccine

Exemption Request was "DENIED at this time."

25. On February 8,2022, the NYPD supplemented its denial of Petitioner's

Vaccine Exemption Request articulating two reasons for the denial: (l) Petitioner's "fw]ritten

statement does not set forth how religious tenets conflicts with vaccine requirement" and (2)

Petitioner had "[n]o demonstrated history of vaccination/medicine refusal."

26. On December February 75, 2022, Petitioner appealed the NYPD's
November 30,2021, denial and submitted a two-page letter in support.

27. In his February 15 Letter, Petitioner objected to being vaccinated because

"fv]accination is not morally obligatory" and stated that "[t]here is a general moral duty to refuse

the use of . . . vaccines that are produced by using human cells derived from direct abortions." But

Petitioner then acknowledged that his faith allowed him to use such vaccines in "certain case-

specific conditions, based on a judgment of conscience," but stated that his ooinformed judgments

about the proportionality of medical interventions are to be respected."

28. Petitioner also noted that he disagreed with the NYPD's determination that

he had "[n]o demonstrated history of vaccination/medicine refusal," but he did not provide any the

Citywide Panel with any examples of prior refusal of vaccines or medicines for religious reasons.

29. After a review of all the documentation provided by both Petitioner and the

NYPD, the Citywide Panel voted to affirm the denial of the reasonable accommodation.

30. The Citywide Panel voted to affirm the denial of the reasonable
accommodation for substantially the same reasons as indicated in the NYPD's February 8,2022

letter. Petitioner explicitly stated that the principle of "the proportionality ofmedical interventions"

that he adheres to allows for vaccination in certain conditions, even where the production of the

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vaccines in question utilized fetal cells. Additionally,
Petitioner's submissions did not provide any

other occasion in which petitioner refused any vaccine
or medication due to religious beliefs or
provided any basis to conclude that Petitioner
applied the religious principles described in his
request to any medical product other than the covlD_19
vaccine.

31' The EEoC's guidance that "personal preferences,
or any other nonreligious
concerns (including about the possible effects of
the vaccine), do not qualify as religious beliefs .

' ' '" and that to qualift as a religious belief the cited belief should be ,,part of a comprehensive
religiousbeliefsystemandisnotsimplyanisolatedteaching.,,

When
viewed in its totality, the record here suggested that petitioner
did not possess a sincerely held,
personal religious belief that precluded vaccination
but instead appeared to either be acting on
personal beliefs or selectively applying general religious principles on this one occasion.
Accordingly, the citywide Panel concluded that Petitioner
had not established a sincere religious

belief that prohibited his compliance with the city's covlD-19
vaccination mandate.

32' Thus, on May 37,2022, the Citywide Panel denied petitioner,s
appeal and
affirmed the NYPD's denial of Petitioner's reasonable accommodation
request because the
Petitioner's appeal "Does Not Meet Criteria." This catego
Azationis used by the panel on occasions

when the Panel affirms the agency's determination that
the employee failed to establish entitlement

to a reasonable accommodation under the applicable legal
standards. As noted above, in this case

that reason was that Petitioner's written statement did not
sufficiently set forth how his religious
tenets conflict with the vaccine requirement and he
had no demonstrated history

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of vaccination/medicine refu sal

Dated: New York, New York
November 18,2022

ERIC J. EICHENHOLTZ

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Case Info

Judge

John J. Kelley Track Judge’s New Case

Case No.

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Document Filed Date

November 23, 2022

Case Filing Date

September 16, 2022

County

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