A Glimpse Inside of the Citywide Panel’s Black Box

We see what goes in the box, we see what comes out of the box, but not what happens IN the box!

Until now

Critical in-depth analysis of the 7-hour deposition

Religious Exemptions to Vaccination in NYC

from EDUCATORS for FREEDOM

6-7-22

There are 2 major cases filed by NYC workers fired for declining covid vaccination that TEACHERS FOR CHOICE watches closely: Kane v. de Blasio and New Yorkers for Religious Liberty (NYFRL) v. NYC.

Below is a major update on the NYFRL case which recently deposed one of the members of the Citywide Panel that decided which religious exemptions were accepted and which weren’t. The deposition lasted 7 hours and some of the highlights include:

• Over 10,000 appeals were requested across the entire city
• So far 3,200 denials have occurred
• Only 100 appeals have been approved
• That’s a denial rate of 97%
• Standards, guidelines and protocols of the panel were poor / rushed
• The Citywide panel does not want to publicly discuss if vaccines prevent covid
• the Citywide panel was not a “fresh look” at the appeal process

So dig in and read this entire piece – well worth it. At the end of this piece we have included the entire 7 hour transcript as a pdf file for reference.

Also make sure to read Smoking Gun in Fired NYC Workers Lawsuit? – mk

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While thousands of city workers’ careers hang in the balance, there was a discovery hearing recently in the New Yorkers For Religious Liberty (NYFRL) case. Judge Scanlon granted plaintiffs to depose Eric Eichenholtz, one of the 9 members of the Citywide Appeals Panel. To clarify, the members of the panel make the decision to affirm a denial or grant an exemption following the initial denial from the various city departments. The individual appeals are decided by a 3 person panel representing the Law Department, Department of Citywide Administrative Services, and New York City Commission on Human Rights.

During litigation, the City has tried to stymie any disclosure or transparency regarding the panel’s decision making process. Through deliberate obfuscation, the panel’s process functions as a black box; where one can observe the inputs and outputs of a system, though how it actually functions is obscured. This begs the question: If this process was constitutionally sound and not discriminatory, why would the City conceal how panelists arrived at their determinations? This question is especially critical with thousands of livelihoods on the line for many months. Many have already been terminated while others were coerced into taking a leave without pay with no other gainful employment permitted. Others still have appeals pending such as over 4,000 NYPD officers.

Although plaintiffs requested to depose all 9 members, the judge granted only one and the City chose Eichenholtz. The fact that our lawyers were able to depose one of the Citywide panelists is a major development in the case. Prior to this development, litigation has been the only window into the process.

The deposition occurred on 5/24/22. Depositions of additional Citywide panelists may follow Eichenholtz if the judge agrees to such.

The deposition began with questions exploring Eichenholtz’s role in the formation of the panel as well as his role in it. He “was consulted and a part of the team that put the panel together, and worked through the reasonable accommodation process with respect to the commissioner of health’s order”(pg.9). He also had a major role in oversight and quality control, along with Sanford Cohen, who is the general counsel at DCAS. They would “review the stats, the cases, confirm when the cases are ready to go out, and move the process forward in that administrative respect” (pg.30). 

So what was actually revealed during this 7 hour session of video recorded and transcribed testimony? 

Unsurprisingly, Eichenholtz found it necessary to keep his cards close to his chest, often responding to questions with the common refrain “I don’t recall, as I sit here today”. Our resolute lawyers peppered him with questions about the panel’s standards and process, while Eichenholtz evaded the vast majority of them with the fleetness of Floyd “Money” Mayweather. Despite the City’s attorney, Bilal Haider’s incessant objections, claiming the line of questioning was “unreasonably annoying” (pg.235) and hoping not to see our lawyers again (pg. 335), our lawyers were able to extract some notable revelations regarding the Citywide Appeals Panel.

The first glaring revelation was the number of appeals that were granted.  There were over 10,000 appeal requests since last October. The panel managed to fully adjudicate and affirm the denial of roughly 3,200. They granted a mere 100 accommodations (pg.32). Approximately 97% of appeals were denied, which strikingly mirrors the denial rate of DOE employees, for which the City used the constitutionally infirm standards of the Scheinman-UFT arbitration award.

Eichenholtz was asked repeatedly to elaborate on standards, guidelines, and protocols that were used to determine accommodations. While paying lip service to EEOC guidelines, he eventually conceded that “ I can see in an ideal world where we were spending months or even years building it up and preparing it, there would be manuals, protocols, you know, rules and regs. That’s not how this went. This was something where we had to build the foundation off of the structure, you know, make sure we’re firm on the standards, and then as we went along, as we encountered things, we would discuss as a panel, you know, we should do this in this situation or that” (pg.75).

As the deposition unfolded, there was a moment where Eichenholtz paused from evading and not recalling. He then proceeded to seemingly contradict himself. He stated “I’ll say this again because we seem to lose sight of this. The Citywide Appeal Panel is an appellate body. We are not a body to gather facts. Our function is not to do that” (pg. 216). Moments later, he contradicts himself by stating “if you start seeing objective facts that might cause you to question the sincerity, you then might consider in the agency, on appeal the agency may have already taken this step, so the appeals panel may not take it, but you start — you might do some limited factual inquiry to explore that further, and then you review those facts (pg.224). 

One example of such “limited factual inquiry” involved sending DOE employees a four question survey, asking questions about dietary practices and if we use Tylenol. These questions were clearly designed more so for the purpose of entrapment rather than elucidation. Despite answering these questions and having to validate our beliefs for the third time, nearly all DOE employees and many other city employees were denied due to being an “undue hardship”. Yet in the deposition, Eichenholtz claims “the vast majority of denials are not undue hardship” (pg.253).

When asked about the issue of undue hardship and direct threat analysis, Eichenholtz admitted that only the Department of Corrections provided a claim that unvaccinated employees would pose a direct threat (pgs.271-272).  With help from City attorney Haider, he then went on to evade a straightforward question: Can vaccinated people get COVID-19? Immediately , Haider spluttered “Well, objection. I’m going to instruct the witness not to answer. He’s here to be — you know, questions that should be directed at a medical professional or someone similar” (pg.274). This bewildering response from Haider is reminiscent of the notorious “I’m not a biologist” quote from newly appointed Supreme Court Justice Ketanji Brown Jackson. 

The undue hardship questions continued and he was asked: “So in considering undue hardship requests, has the Citywide Appeals Panel or any of its individual panels considered whether it makes any difference to the spreading of COVID-19 whether an employee is vaccinated or unvaccinated?” His response was “Yeah, as I said, I don’t remember the particular rationale. You know, obviously I’m aware of the various rationales of the vaccine and their effectiveness and it might play a role in depending on the agency’s explanation. But to say here it played a role in this way or this way, I can’t say” (pg. 275).

Besides evasion, Eichenholtz’s other preferred tactic was to attempt to wash his hands of any culpability in relation to the accommodations process. When asked “if the Citywide Appeals Panel is basically not required to determine whether or not the agency employer has complied with the New York State Human Rights Law or the New York City Human Rights Law”, he responds “yeah, and to do this, to engage in this kind of back and forth, you know, I think this kind we need — you know, and it’s not my role here to have a legal discussion with you about what the law requires, what the law requires someone to show at certain stages of the process” (pg.302).

Moments later, his evasion tactic returned with perhaps its most egregious implementation. The following is such an exemplary excerpt on evasion that it truly ought to be seen verbatim:

“Q. Were any — again, you haven’t answered my question. Did you rely on any evidence for those determinations?

Eichenholtz: We’ve had this conversation with —

Q. For your undue hardship determinations, did you rely on any evidence?

Eichenholtz: My function in the panel is not to gather —

Q. I would ask that you say yes or no. 

Eichenholtz: I’m trying to explain to you why I can’t answer it yes or no. So it is challenging because you’re using terms like “you,” which I can’t even tell whether you’re asking me personally, you’re asking the panel, you’re asking the whole reasonable accommodation process” (pgs.318-319).

The final line there speaks volumes as Eichenholtz is so desperately looking for an exit from the question that he ends up personifying a bureaucratic accommodation process.

Those following this case are aware that the original reasonable accommodations process was created by the City for DOE employees, while healthcare workers, despite valiant efforts in the courts and the streets, were categorically denied any such accommodations statewide. The DOE accommodations process was found to be constitutionally infirm by the Second Circuit and as a result of the deposition, we know now that Eichenholtz had some involvement in the initial arbitration process that resulted in the flawed Scheinman-UFT arbitration award. He admits “I may have been — as the process was going on and the people who were engaged in such processes were doing it may have had my legal opinion solicited on various issues.”

When asked “was that legal opinion ever solicited for suggested criteria for determining religious accommodations?”, he responds “I cannot say due to attorney/client privilege (pg.335).

The purpose of the Citywide Appeals Panel is to provide employees with a fresh look or consideration in response to the potentially biased or discriminatory denials made by their respective city departments. Known in the courts as a de novo standard, this fresh look gave many City employees hope that perhaps a more neutral body would be able to make a more fair assessment of their accommodations request or at least determine other less restrictive accommodations. Eichenholtz admits “yeah, and I agree with you, Mr. Nelson, you can’t exactly get precisely the same analogy, but it is akin to a de novo standard. We are reviewing and doing sort of an independent and open-minded review of the record, mindful of the agency’s grounds, excuse me, for denying the reasonable accommodation that we’re seeing on appeal (pg.53).

To the contrary, as evinced by the 97% denial rate of the Citywide Appeals Panel, the de novo standard was not applied. The panel’s rubber stamp denials belie any fresh look and they continue to emit a stale stench that perhaps even congested judges cannot avoid. 

400+ page transcript: