United States District Court, D. New Jersey
B. Kugler, United States District Judge.
MATTER comes before the Court by way of Plaintiff
Alexander Smith's Motion for a Temporary Restraining
Order ("TRO") and Preliminary Injunction [Doc. No.
2], which seeks to enjoin the City of Atlantic City from
disciplining him for violating the Atlantic City Fire
Department's ("ACFD" or "Department")
March 18, 2019, the Court held a hearing on the Motion.
Plaintiff argued, in part, that ACFD's grooming policy
prohibiting his three-inch beard violates his right to freely
exercise his religious beliefs under the First and Fourteenth
Amendments. Plaintiff also claimed that Defendants failed to
provide a reasonable accommodation and retaliated against
him, in violation of Title VII of the Civil Rights Act of
1964. Upon hearing argument and testimony, the Court
DENIED Plaintiffs Motion for a TRO. The
following Opinion provides a more detailed discussion of the
Court's March 18, 2019 Order.
Smith is an African American male and Christian. He has
worked for the Atlantic City Fire Department for nearly
sixteen years. Recently, in December 2018, he grew a
three-inch beard to exercise his Christian faith. He then
asked ACFD for a religious accommodation that exempted him
from the Department's longstanding grooming policy.
January 1979, the ACFD has followed operational guidelines
that list grooming standards for members. See
Operational Guidelines 0# 0303 [Doc. No. 2-6]. These
guidelines contain various rules that govern facial hair.
Id. For example, sideburns cannot extend below the
earlobe, and mustaches cannot extend beyond the lip.
Id. The guidelines also preclude any firefighter
from growing a beard. Id. at ]f]f 5-6. In relevant
part, 0# 0303 states:
5. Members shall be clean shaven while on duty. Exception,
those persons called in on an emergency call-back shall not
be required to shave prior to arrival at the station or fire
6. Beards and goatees of any type are specifically
prohibited. In no case shall facial hair, including stubble,
inhibit the seal of the air mask's face piece.
Id. (collectively, "grooming policy").
recently changed roles in the ACFD. Smith Affidavit
("Smith Aff") at ¶ 22 [Doc. 2-5]. After twelve
years in the Fire Suppression Unit, the Department promoted
him to Air Mask Technician in November 2015. Id. at
¶¶ 3, 22, 25. As an Air Mask Technician, Plaintiff
administered fire masks and face pieces and refilled empty or
partially empty air bottles at fire scenes. Id. at
¶ 3. Plaintiff also performed the Department's
annual "fit tests," consistent with respirator
standards under the Public Employees Occupational Safety and
Health Act ("PEOSHA"). Id. The fit test,
like the PEOSHA regulation for respirator standards, states
that firefighters serving public entities shall not have
facial hair. During ACFD fit testing, Plaintiff checked
each member's Self-Contained Breathing Apparatuses and
Air Cylinders ("SCBA") and ensured a proper mask
seal. Id. at ¶ 26. An improper, or
loose-fitting seal, increases a firefighter's risk of
danger, especially when engaging in fire suppression. As Air
Mask Technician, Plaintiff oversaw these annual tests and
reported instances of non-compliance to senior members in the
ACFD. Despite an ACFD policy requiring annual testing, some
ACFD members, including Plaintiff, did not get fit tested
each year. Id. at ¶ 6.
December 2018, Plaintiff grew a beard approximately three
inches in length. Smith Aff at ¶ 8. He then contacted
Thomas J. Culleny, Jr., Deputy Chief of the ACFD, and Anthony
Swan, Solicitor for the City of Atlantic City, and requested
a religious accommodation that would permit him to wear a
beard. Smith Email, Jan. 3, 2019 [Doc. No. 2-14]; Smith Aff.
at ¶ 5. During these interactions, Plaintiff explained
the basis of his request. Id. at ¶¶ 14-21.
He provided articles and religious excerpts that connected
his religious tenets to his three-inch beard. Id. He
also explained how his religious education expanded during
his tenure in the ACFD. Id. For example, he became
ordained as a minister and founded The Way of Holiness Temple
in 2009. Id. And, at the time of his request, he
pursued a master's degree in divinity and awaited his
swearing in as ACFD Chaplin. Id.
the ACFD nor City of Atlantic City (collectively,
"Defendants") answered Plaintiffs accommodation
request for more than a month. During that time, Plaintiff
worked in a temporary role in ACFD's Fire Shop and was
not permitted to respond to fires. On February 4, 2019,
Plaintiff filed an employee complaint, which restated his
request for an accommodation and claimed that ACFD had
retaliated against him and placed him in a new temporary
role. Smith Compl. [Doc. No. 2-15].
February 15, 2019, ACFD formally denied Plaintiffs request
for an accommodation. Id. at ¶ 62. Chief Evans
denied the request by letter. Evans Letter, Feb. 15, 2019
[Doc. No. 2-18]. In relevant part, the letter stated,
"Due to the overwhelming safety concerns for yourself as
well as for your fellow firefighters and the public, your
request for a religious exemption is denied."
Id. Plaintiff must comply with ACFD's grooming
policy and "report for duty clean shaven."
Id. Plaintiff alleged that if he reported to work
with his beard, ACFD would suspend him without pay and
potentially terminate him from the Department. Smith Aff at
February 25, 2019, Plaintiff filed a four-count complaint
against the City of Atlantic City, ACFD Chief Scott Evans,
and ACFD Deputy Chief Thomas Culleny (collectively,
"Defendants"). Compl. [Doc. No. 1]. Count I
asserted that Defendants violated Plaintiffs right to freely
exercise his religious beliefs under the First Amendment,
pursuant to 42 U.S.C. § 1983, and related claims
pursuant to the New Jersey Civil Rights Act
("NJCRA"). Id. Count II alleged Equal
Protection violations under the Fourteenth Amendment,
pursuant to 42 U.S.C. § 1983, and related claims
pursuant to the NJCRA and the New Jersey State Constitution.
Count III asserted Title VII violations, pursuant to the
Civil Rights Act of 1964, for failure to provide a religious
accommodation and for retaliation. Id. Count IV
claimed discrimination pursuant to New Jersey Law Against
Discrimination ("NJLAD"). Id.
then filed the instant application for a TRO and preliminary
injunction on February 26, 2019. Plaintiffs Application
("PL's Appl.") [Doc. No. 2]. On March 1, 2019,
the Court held an initial evidentiary hearing. At this
hearing, the parties agreed to stay proceedings and scheduled
a settlement conference with Magistrate Judge Joel Schneider.
The parties then participated in an in-person settlement
conference before Judge Schneider on March 7, 2019. The
parties informed this Court that settlement discussions had
come to an impasse, and on March 18, 2019, the Court
continued the evidentiary hearing on Plaintiffs Application.
Court considered arguments and heard testimony at the March
18, 2019 hearing.The parties also submitted additional
declarations. [Doc. Nos. 10-11]. For example, Plaintiff
submitted an anonymous affidavit, PEOSH Respiratory
Protection Standards, and evidence of an alternative mask
that could accommodate someone with a beard. Plaintiffs
Supplemental Declaration ("PL's Supp. Decl.")
[Doc. No. 10]. Meanwhile, Defendants submitted an affidavit
from ACFD Chief Scott Evans, a letter from the New Jersey
Department of Health to ACFD Deputy Chief Thomas Culleny, and
an OSHA decision letter. Defendants' Response to
Plaintiffs Application ("Defs.' Resp. to PL's
AppL") [Doc. No. 11].
Court found the Plaintiffs supplemental submissions largely
inadequate. The Court noted Local Rule 7.2, which states that
affidavits, declarations, and similar documents referenced in
28 U.S.C. § 1746 are "restricted to statements of
fact within the personal knowledge of the signatory." L.
Civ. R. 7.2(a). The declarations submitted to the Court,
however, offered legal conclusions without a sufficient basis
of personal knowledge.
then testified on the record. He discussed his role as an Air
Mask Technician. He described ACFD's practice of
permitting certain employees not to be fit tested. For
example, he stated that Chief Evans had not passed an ACFD
fit test for more than two years, and only passed a recent
ACFD fit test just days before the hearing. Plaintiff also
admitted that any amount of facial hair would lead to
additional safety risks because of an improper seal.
Evans testified next. He detailed general financial problems
confronting Atlantic City. He then described recent changes
to the ACFD. For example, ACFD has not hired for several
years, and the number of firefighters decreased from nearly
260 firefighters in 2014 to 185 firefighters today. As a
result, all active members, even Air Mask
Technicians, are expected to be fit tested and able to engage
in suppression fire in the event of an emergency. Any ACFD
member not annually fit tested, he added, was due to an
oversight from the large reduction in force. Chief Evans also
claimed that he was unaware of any mask that could
accommodate facial hair. He explained that even altering a
single mask for Plaintiffs accommodation would cause the
Department to make extensive changes to all ACFD masks.
Chief Culleny then testified about how the ACFD responded to
the accommodation request. He contacted ACFD's equipment
vendor and inquired about the availability of an alternative
mask suitable for fire suppression that could accommodate
someone with a beard. He asked a second vendor, who worked
for another leading company, about the existence of an
alternative mask. Both vendors stated that an alternative
mask did not exist that comported with state respiratory
regulations. Deputy Chief Culleny also contacted Patrick Bost
of New Jersey Department of Health and inquired about an
exemption from PEOSH regulations for firefighters wishing to
wear a beard for religious purposes. See Email,
Thomas Culleny to ...