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Smith v. City of Atlantic City

United States District Court, D. New Jersey

March 22, 2019

Alexander SMITH, Plaintiff,
v.
CITY OF ATLANTIC CITY, Scott EVANS, Chief of the Atlantic City Fire Department; and Thomas J. CULLENY, Jr., Deputy Chief of the Atlantic City Fire Department, Defendants.

          OPINION

          Robert B. Kugler, United States District Judge.

         THIS 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") grooming policy.

         On 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.

         I. BACKGROUND

         Alexander 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.

         Since 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 scene.
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").

         Plaintiff 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.[1] 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.

         In 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.

         Neither 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].

         On 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 ¶¶ 11-12.

         II. PROCEDURAL HISTORY

         On 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.

         Plaintiff 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.

         A. Evidentiary Hearing

         The Court considered arguments and heard testimony at the March 18, 2019 hearing.[2]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].

         The 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.

         Plaintiff 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.

         Chief 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.

         Deputy 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 ...


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