Contractual Waiver of Resignation Challenges Does Not Extinguish Right to Seek Religious Accommodation Under DOE Vaccine Mandate

Introduction

This decision from the Appellate Division, Second Department, addresses how a union-negotiated leave-without-pay waiver interacts with an employee’s right to seek a religious accommodation to the New York City Department of Education’s (DOE) COVID‑19 vaccination mandate. The court clarifies two key principles: first, that the waiver at issue broadly foreclosed challenges to a deemed resignation effective after a stated date, even if such challenges are premised on events occurring after the waiver was signed; and second, that the waiver did not, and could not, extinguish the separate right to request a legally required reasonable accommodation—here, a religious exemption—before the resignation date. The decision also reaffirms the “American Rule” barring the award of attorneys’ fees absent agreement, statute, or court rule.

The parties were Jennifer LaBarbera, a DOE preschool teacher, and the DOE. After the City’s vaccine mandate was issued, Ms. LaBarbera accepted a union-negotiated arrangement placing her on leave without pay with health benefits and signed a waiver that deemed her to have resigned if she failed to return by September 6, 2022. Before that date, she applied for a religious exemption; DOE denied the application. She brought an Article 78 proceeding challenging the denial and seeking reinstatement, back pay, and fees. The Supreme Court granted the petition, annulled DOE’s denial, ordered reinstatement, back pay, and fees. DOE appealed.

Summary of the Judgment

• Appeal from order dismissed: The appeal from the intermediate order was dismissed as nonappealable as of right in an Article 78 proceeding; issues were reviewed through the appeal from the final judgment.
• Waiver construed broadly as to resignation: The court held the waiver’s language barred challenges to the petitioner’s deemed resignation effective September 6, 2022, even if the challenge relied on post-waiver events.
• But waiver did not foreclose accommodation request: The DOE conceded—and the court held—that the contractual promise not to challenge the resignation did not waive the petitioner’s right to seek a reasonable (religious) accommodation to the vaccine mandate prior to the resignation date.
• DOE’s denial of accommodation stands annulled: DOE did not contest on appeal the Supreme Court’s ruling that its denial of the religious exemption was arbitrary and capricious. That determination was therefore affirmed, and the petitioner was entitled to an exemption before September 6, 2022.
• Remedies: The award of back pay remained intact. The award of attorneys’ fees was struck because no agreement, statute, or court rule authorized it. One bill of costs was awarded to the petitioner.
• Disposition: Judgment modified to delete attorneys’ fees; as modified, affirmed. The order was modified accordingly.

Analysis

Precedents Cited and Their Influence

• Matter of Aho, 39 NY2d 241 (1976); CPLR 5701(b)(1); CPLR 5501(a)(1)

  These authorities govern appellate practice in Article 78 proceedings. The court relied on them to dismiss the appeal from the intermediate order and to review the issues on appeal from the final judgment. This procedural housekeeping underscores that appellate review proceeds through the judgment, not the intermediate order.

• 159 MP Corp. v Redbridge Bedford, LLC, 33 NY3d 353 (2019)

  Redbridge emphasizes that contracts—especially negotiated waivers—are enforced according to their terms. The court cited it to frame the waiver as a contract governed by ordinary contract principles, reinforcing that clear waiver language will be applied as written.

• Ming Long Liu v Kirkwood, 222 AD3d 861 (2d Dep’t 2023); Givati v Air Techniques, Inc., 104 AD3d 644 (2d Dep’t 2013); God’s Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371 (2006)

  These cases set out core canons of contract interpretation: ascertain parties’ intent from the language used; avoid interpretations that render contractual provisions superfluous; give effect to all terms. The Second Department used these principles to reject the trial court’s narrow reading of the waiver as limited to pre-execution events and to conclude that the resignation bar applied prospectively.

• Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1 (1986); Matter of Ferrera v New York City Dept. of Educ., 230 AD3d 772 (2d Dep’t); Matter of McCrudden v Putnam Val. Cent. School Dist., 88 AD3d 721 (2d Dep’t 2011)

  These authorities reiterate the American Rule in New York: attorneys’ fees are not recoverable unless authorized by statute, contract, or court rule. The court relied on them to strike the fee award in this Article 78 proceeding.

Legal Reasoning

1. Scope and effect of the waiver

   The waiver the petitioner signed provided that if she did not return by September 6, 2022, she would be deemed to have voluntarily resigned and would waive her right to challenge that resignation, including through contractual or statutory disciplinary procedures. The Supreme Court had treated the waiver as restricted to claims based on events “up to and including” the date of signing. The Appellate Division corrected that interpretation by reading the waiver as a whole. It refused to isolate the “up to now” release clause from the separate, forward-looking resignation clause. Applying the canons to give effect to all terms, the court held that the waiver broadly barred any later challenge to the deemed resignation—regardless of whether that challenge invoked post‑execution events.

2. Accommodation rights preserved despite the waiver

   Crucially, the court accepted DOE’s acknowledgment that the promise not to challenge resignation did not waive the distinct legal right to seek a reasonable accommodation (including a religious exemption) to the vaccine mandate before the resignation date. The mandate itself expressly preserved “reasonable accommodations otherwise required by law.” The arbitration award and waiver contemplated two compliance pathways: vaccination or an approved accommodation. Thus, the employee’s pursuit of a religious exemption was a recognized avenue to comply and return to work before September 6, 2022, and the waiver could not be read to negate or forfeit that right.

3. Article 78 review of the denial

   Because the waiver did not foreclose the right to seek an accommodation, it did not bar an Article 78 challenge to DOE’s denial of the exemption request. DOE did not dispute on appeal the Supreme Court’s determination that its denial was arbitrary and capricious. The Appellate Division therefore affirmed that determination and recognized the petitioner’s entitlement to a religious exemption prior to September 6, 2022. As a remedial matter, that entitlement supported reinstatement and back pay.

4. No attorneys’ fees absent authority

   Applying the American Rule, the court modified the judgment to delete the attorneys’ fees award because there was no agreement, statute, or rule authorizing fees in this context. The court nonetheless awarded the petitioner one bill of costs, consistent with standard cost-taxation rules.

Impact and Forward-Looking Consequences

• Union waivers and COVID‑19 mandates

  This decision clarifies that leave-without-pay waivers linked to vaccine mandates will be enforced as written, including prospective bars against challenging a deemed resignation. However, such waivers do not eliminate employees’ rights to request legally required accommodations. Agencies and employers cannot rely on general releases to defeat challenges to the handling of accommodation requests made within the waiver’s operative period.

• Administrative processing of accommodation requests

  Agencies must carefully process religious or other legally mandated accommodations embedded in mandate regimes. Where the mandate (as here) explicitly preserves accommodations “otherwise required by law,” denials that are arbitrary and capricious remain vulnerable to Article 78 review and can result in reinstatement and back pay.

• Contract drafting and litigation strategy

  Employers and unions should draft waivers that clearly distinguish between: (a) releases/waivers of claims relating to separation and discipline, and (b) the preserved right to seek accommodations necessary to comply with mandates. Litigants should recognize that while general releases can bar challenges to a later deemed resignation, they will not bar judicial review of accommodation decisions made during the covered period.

• Remedies landscape

  The court’s retention of back pay, coupled with elimination of attorneys’ fees, signals likely relief contours in similar cases: successful Article 78 petitioners may obtain annulment of denials, reinstatement, and back pay, but should not expect fee-shifting unless a specific statute, rule, or bargained-for provision applies.

• Appellate practice reminder

  The dismissal of the appeal from the intermediate order reiterates that in Article 78 practice, parties should perfect appeals from final judgments. Issues raised in interlocutory orders are reviewable on appeal from the final judgment.

Complex Concepts Simplified

• CPLR Article 78 proceeding

  A special New York proceeding allowing judicial review of actions by state and local agencies. Courts examine whether the agency acted arbitrarily and capriciously, abused discretion, or acted contrary to law.

• Arbitrary and capricious

  A standard of review asking whether the agency’s decision had a rational basis or was taken without sound reasoning. If no rational basis exists, the court can annul the decision.

• Reasonable accommodation (religious exemption)

  An employer’s adjustment to a job requirement to accommodate an employee’s sincerely held religious beliefs, when required by law and not imposing undue hardship. Here, the vaccine mandate itself recognized the availability of such accommodations.

• Waiver and release

  A contractual agreement relinquishing rights or claims. Waivers can cover past events (releases) and, in some contexts, future challenges (e.g., agreeing not to contest a deemed resignation after a stated date). Courts interpret them by their plain language, giving effect to all terms.

• “One bill of costs” vs. attorneys’ fees

  “Costs” are limited, statutory reimbursements (like filing fees) taxable to the prevailing party. “Attorneys’ fees” compensate for legal services and are generally not recoverable in New York absent a statute, contract, or rule expressly authorizing them.

• Appealability of orders in Article 78

  Intermediate orders in Article 78 cases are typically not appealable as of right. Issues from such orders are reviewed on the appeal from the final judgment, ensuring one comprehensive appellate review.

Key Takeaways

• A union-negotiated waiver that deems an employee to have resigned after a date and waives challenges to that resignation applies prospectively and will be enforced as written.
• Such a waiver does not waive the employee’s distinct, legally preserved right to request and obtain a reasonable (religious) accommodation to a vaccine mandate before the resignation date.
• An Article 78 proceeding remains available to challenge arbitrary and capricious denials of accommodation requests; successful petitioners can secure reinstatement and back pay.
• Attorneys’ fees are not available in Article 78 proceedings absent a statute, rule, or contract authorizing fee-shifting.
• Procedurally, challenges to intermediate orders in Article 78 cases should be pursued via appeal from the final judgment.

Conclusion

Matter of LaBarbera v. NYC DOE harmonizes contractual waiver doctrine with statutory and regulatory accommodation rights in the context of COVID‑19 vaccine mandates. The Second Department firmly enforces a prospective waiver of challenges to a deemed resignation while preserving the employee’s access to an accommodation pathway expressly contemplated by the mandate and the parties’ arbitration framework. The ruling reinforces careful contract interpretation, the availability of Article 78 review for accommodation denials, and the continued vitality of the American Rule on fees. For employers, unions, and employees navigating mandate compliance and accommodation processes, the decision provides a clear blueprint: respect the bargain struck in waivers, but do not read those waivers to negate the separate, legally protected right to reasonable accommodation within the agreed timeframe.