Bey v. City of N.Y.

• Decision Date: 09 June 2021
• Docket Number: Nos. 20-456,August Term 2020, 20-650,s. 20-456
• Parties: Salik BEY, Terrel Joseph, Steven Seymour, Clyde Phillips, Plaintiffs-Appellees-Cross-Appellants, v. CITY OF NEW YORK, Fire Commissioner Daniel A. Nigro, New York City Fire Department, John and Jane DOE 1–10, Karen Hurwitz, Shenecia Beecher, Defendants-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

999 F.3d 157

Salik BEY, Terrel Joseph, Steven Seymour, Clyde Phillips, Plaintiffs-Appellees-Cross-Appellants,

v.CITY OF NEW YORK, Fire Commissioner Daniel A. Nigro, New York City Fire Department, John and Jane DOE 1–10, Karen Hurwitz, Shenecia Beecher, Defendants-Appellants-Cross-Appellees.

Nos. 20-456

August Term 2020, 20-650

United States Court of Appeals, Second Circuit.

Argued: October 21, 2020

Decided: June 9, 2021

Nicolas Y. Riley, Institute for Constitutional Advocacy & Protection, Georgetown University Law Center, Washington, DC; Aymen Aboushi, Tahanie Aboushi, Aboushi Law Firm, New York, NY, for Plaintiffs-Appellees-Cross-Appellants.

D. Alan Rosinus, JR. (Richard Dearing, Devin Slack, on the brief), Assistant Corporation Counsels, for James E. Johnson, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellants-Cross-Appellees.

Before: Raggi, Sullivan, and Bianco, Circuit Judges.

Richard J. Sullivan, Circuit Judge:

This case presents the question of whether employers are required to offer a medical accommodation to their employees under the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., even if the requested accommodation is expressly prohibited by binding federal safety regulations. We conclude that they are not, and that such an accommodation is by definition not a reasonable one.

I. Background

Plaintiffs Salik Bey, Terrel Joseph, Steven Seymour, and Clyde Phillips (collectively, the "Firefighters") are Black men who were or still are firefighters with the New York City Fire Department (the "FDNY"). Each of them suffers from a skin condition called Pseudofolliculitis Barbae

or "PFB," which results in persistent irritation and pain following shaving. The effects of shaving with PFB can range from mild or moderate (such as skin irritation, bruising, and boils) to severe (such as facial scarring). While there are some treatments that help limit PFB's effects, it is medically recommended that individuals with PFB avoid shaving down to the skin. PFB affects between 45% and 85% of Black men.

For most jobs, the inability to be clean shaven would not present a fundamental problem. But that's not the case for firefighters. When fighting fires, particularly fires in urban areas, firefighters can be exposed to smoke and other toxic fumes – conditions that safety regulations refer to as "IDLH atmospheres."¹ To protect themselves against those toxic atmospheres, firefighters are required to wear a respirator also known as a self-contained breathing apparatus or "SCBA."

Under New York law, the FDNY must comply with regulations created by the United States Occupational Safety and Health Administration ("OSHA"). See N.Y. Labor Law § 27-a(4)(a). Those regulations cover topics such as what respirators to use, how to test respirator effectiveness, and how respirators should be worn. See generally 29 C.F.R. § 1910.134. Of particular importance here are regulations concerning respirator fit and seal; if a respirator does not seal snuggly against the mask-wearer's face, there is a risk that it will not be able to keep out IDLH atmospheres. To ensure proper sealing, the regulations direct that "[f]acial hair [cannot] come[ ] between the sealing surface of the [respirator's] facepiece and the face." See id. § 1910.134(g)(1)(i)(A). Consistent with that mandate, the FDNY has a written grooming policy that governs how full-duty firefighters may wear their facial hair. In its current form, the policy requires all full-duty firefighters to be clean shaven in the neck, chin, and cheek area, and permits only short sideburns and a closely trimmed mustache that does not extend beyond the mouth's corners or below the lower lip. While the policy currently has no exceptions, it has not always been so strict.

Back in August 2015, the FDNY began to offer medical accommodations to firefighters with PFB. Those accommodations permitted the firefighters to maintain closely cropped beards (one millimeter to one quarter inch in length), uncut by a razor. To ensure that this accommodation did not interfere with respirator performance, the FDNY required firefighters seeking to take advantage of the exception to pass a "fit test" – a standardized test designed by OSHA to ensure that an SCBA properly seals against the mask-wearer's face. Only when a firefighter with facial hair was able to pass such a test without any air leakage

did the FDNY permit him to return to full duty. During the time this accommodation system was in place, twenty firefighters, including the plaintiffs, took advantage of the program without any adverse safety incidents.²

But following a review in May 2018, the FDNY determined that the accommodation was prohibited by OSHA's regulation and revoked the program. As a result, all firefighters who had previously been granted an accommodation were told that either they had to become clean shaven or they would be placed on light duty.³ Eventually, each of the Firefighters chose to remain on full duty and shaved.

Later that year, the Firefighters filed this action in the United States District Court for the Eastern District of New York (Weinstein, J. ) against the City of New York, the FDNY, and various FDNY officials (collectively, "FDNY"), seeking both injunctive relief and damages under the ADA, Title VII, the United States Constitution, and various state and city laws for alleged discrimination. Specifically, the Firefighters argued that by revoking the medical accommodation previously offered to individuals suffering from PFB, the FDNY discriminated against them in violation of the ADA. In addition, because PFB affects Black men more than men of other races, and because only men are required to shave to meet the requirements of the FDNY's facial hair policy, the Firefighters asserted that the FDNY's grooming policy resulted in both disparate treatment and disparate impact in violation of Title VII.

In August 2019, following discovery, the parties cross-moved for summary judgment. The district court granted summary judgment in favor of the Firefighters on their ADA claim, but ruled in favor of the FDNY on all other claims. See generally Bey v. City of New York , 437 F. Supp. 3d 222 (E.D.N.Y. 2020). As to the ADA claim, the district court determined that the FDNY's interpretation of the relevant OSHA regulations was unduly restrictive in light of a May 2016 OSHA guidance letter, and it concluded that the regulations actually permitted the medical accommodation the Firefighters sought. See id. at 235. Because the FDNY supplied no other basis on which to deny the accommodation, and given that the FDNY had previously offered the accommodation for two-and-a-half years without incident, the district court held that the FDNY was required to resume the accommodation program and entered an injunction to that effect. Id. Notably, the district court was silent on whether damages were also warranted. Id. at 235, 239.

On the Firefighters’ Title VII claims, however, the district court granted summary judgment in favor of the FDNY. As to the disparate treatment claim, the district court found that the Firefighters failed to "produce[ ] evidence showing that they were similarly situated to ... unidentified Caucasian firefighters" who were allegedly permitted to wear beards. Id. at 237. The district court also dismissed the Firefighters’ disparate impact claim, reasoning that the Firefighters’ theory that the FDNY had purposefully discriminated against them was, "at bottom[,] [a] claim[ ] for disparate treatment only." Id. at 238 (citations omitted).

Finally, the district court granted summary judgment to the FDNY on the Firefighters’ various constitutional claims because the Firefighters "did not develop an argument on these claims." Id. at 239. As to the Firefighters’ state- and city-law claims, however, the district court explained that it was dismissing them "without prejudice for possible pursuit elsewhere." Id.

The FDNY timely appealed from the district court's decision to grant an injunction on the ADA claim. The Firefighters cross-appealed the district court's summary judgment ruling on their Title VII disparate impact claim (though not their disparate treatment claim). In addition, the Firefighters requested that their state-law claims be reinstated in the event that any of their federal claims are remanded for trial.

II. Appellate Jurisdiction

Although the parties agree that we have jurisdiction over the issues raised on appeal, they dispute why that is. According to the FDNY, the district court's order was a final decision, meaning that we have jurisdiction under 28 U.S.C. § 1291. The Firefighters disagree, asserting that the district court's decision was non-final because it did not address the issue of damages on their ADA claim. Nevertheless, the Firefighters argue that we have jurisdiction over the appeal because both claims before us require injunctive relief and decisions about such relief are fit for appeal on an interlocutory basis. See 28 U.S.C. § 1292(a)(1).

We agree with the FDNY that the district court's decision was "final" within the meaning of § 1291. Generally, a final decision is one "that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Rabbi Jacob Joseph Sch. v. Province of Mendoza , 425 F.3d 207, 210 (2d Cir. 2005) (internal quotation marks omitted). When assessing whether a particular decision meets that criteria, we eschew formalism in favor of a pragmatic approach. See Fiataruolo v. United States , 8 F.3d 930, 937 (2d Cir. 1993). We instead look to whether, following the district court's decision, further proceedings are contemplated or required. See Coca-Cola Bottling Co. of N.Y., Inc. v. Soft Drink & Brewery Workers Union Local 812, Int'l Brotherhood of Teamsters , 242 F.3d 52, 55–56 (2d Cir. 2001) ; United States v. Interlink...