Hamilton v. City of New York

• Decision Date: 28 September 2021
• Docket Number: 18-CV-4657 (NGG) (VMS)
• Citation: 563 F.Supp.3d 42
• Parties: Kevin HAMILTON, Plaintiff, v. CITY OF NEW YORK, Daniel Nigro, Karen Hurwitz, Shenecia Beecher, FDNY, John and Jane Does 1-10, Defendants.
• Court: U.S. District Court — Eastern District of New York

563 F.Supp.3d 42

Kevin HAMILTON, Plaintiff,

v.CITY OF NEW YORK, Daniel Nigro, Karen Hurwitz, Shenecia Beecher, FDNY, John and Jane Does 1-10, Defendants.

18-CV-4657 (NGG) (VMS)

United States District Court, E.D. New York.

Signed September 28, 2021

Tahanie A. Aboushi, Aymen A. Aboushi, The Aboushi Law Firm, New York, NY, for Plaintiff.

Andrea Mary O'Connor, New York City Law Department, New York, NY, for Defendants City of New York, Fire Commissioner Daniel Nigro, FDNY, Karen Hurwitz, Shenecia Beecher.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Kevin Hamilton practices Judaism and maintains facial hair as an expression of his faith. He is also a firefighter with the Fire Department of the City of New York ("FDNY"), an agency of the City of the New York, which has a clean-shave grooming policy for all full-duty firefighters. The FDNY previously granted Plaintiff a religious accommodation to maintain close-cropped facial hair while continuing to serve as a full-duty firefighter. But the Department later ended its accommodation program and revoked Plaintiff's exemption from the clean-shave policy. As a result, Plaintiff could not comply with the grooming policy, and the FDNY transferred from full-duty firefighting responsibilities to light duty.

Plaintiff now brings this action against the City of New York, the FDNY, Fire Commissioner Daniel Nigro, and other current named and unnamed FDNY employees (collectively, "Defendants"), alleging religious discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 ("Title VII"); the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL"); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 ("NYCHRL"). (Second Am. Compl. (Dkt. 31) ¶¶ 85-117, 137-186.) Plaintiff also asserts claims under the First and Fourteenth Amendments of the United States Constitution pursuant to 42 U.S.C. §§ 1981, 1983. (Id. ¶¶ 118-170).

The Second Circuit recently decided Bey v. City of New York , which involved Black firefighters who requested a medical accommodation from the FDNY's clean-shave grooming policy to maintain close-cropped facial hair. See 999 F.3d 157, 161-62 (2d Cir. 2021).¹ Those firefighters brought a failure-to-accommodate claim under the Americans with Disabilities Act ("ADA") and racial discrimination claims under Title VII. See id. at 161. The Second Circuit held that federal regulation promulgated by the U.S. Department of Labor's Occupational Safety and Health Administration ("OSHA") unambiguously requires firefighters to be clean shaven where a respirator seals against their face (which New York City firefighters use). See id. at 166-67. Because OSHA's regulations are binding on the FDNY and prohibit the accommodation that the firefighters requested, the FDNY could not be held liable: Neither the ADA nor Title VII can be used to require employers to depart from binding federal regulations. See id. at 168-71.

Pending before the court are the parties’ cross motions for summary judgment.² In these parallel motions, the parties ask the court for summary judgment on virtually the same claims. The Second Circuit's decision in Bey resolves much of the parties’ dispute as to the meaning of OSHA's regulation and the FDNY's implementation of that regulation. With that decision in hand, the court first considers Plaintiff's religious discrimination and equal protection claims, then turns to Plaintiff's First Amendment claim. For reasons that follow, Defendants’ Motion for Summary Judgment is GRANTED, and Plaintiff's Motion for Summary Judgment is DENIED.

I. BACKGROUND³

Plaintiff became a New York City firefighter after attending the FDNY's Firefighter Academy, which provides intensive training to prospective New York City firefighters. (Defs.’ R. 56.1 Stmt. ("Defs.’ 56.1") (Dkt. 47) ¶ 1; Defs.’ Resp. to Pl.’s R. 56.1 Stmt. ("Defs.’ 56.1 Resp.") (Dkt. 59) ¶¶ 2, 4.). Plaintiff served mostly as a "full duty" firefighter from January 2013 to May 2018. (Defs.’ 56.1 ¶¶ 65-68.)

A full-duty firefighter performs "all the essential job[ ] functions of a Firefighter," namely, responding to fires and other emergency incidents. (Id. ¶ 23.) In responding to certain emergencies, New York City firefighters must wear a respirator. (Id. ¶¶ 7, 10-12.) The FDNY uses the N95 Respirator and the Scott AV-2000 Full Facepiece. (Id. ) The Scott AV-2000 mask seals against the user's cheeks and chin. (See Scott AV-2000 Full Facepiece (Dkt. 46-4).)

Full-duty firefighters must comply with the FDNY's Safety Standards. (Defs.’ 56.1 ¶ 24.) These Safety Standards include a grooming policy. (Id. ; Firefighting Grooming – Health and Safety Standards ("Grooming Policy") (Dkt. 46-3).) This policy prohibits "beards, goatees, or any form of facial hair beneath the lower lip" and requires firefighters be "freshly shaven when reporting for duty." (Grooming Policy at 3; Defs.’ 56.1 ¶ 24.)

The FDNY's grooming policy aligns with applicable federal regulation, specifically, OSHA's "Respiratory Protection Standard," 29 C.F.R. 1910.134. (Defs.’ 56.1 ¶¶ 7-8.) The Respiratory Protection Standard provides that an "employer shall not permit respirators with tight-fitting face pieces to be worn by employees who have ... [f]acial hair that comes between the sealing surface of the facepiece and the face or that interferes with valve function," 29 C.F.R. 1910.134(g)(1)(i)(A). (Id. ¶ 8; OSHA Standard Interpretation Letter (Dkt. 46-1).) This Standard is binding on the FDNY under New York State law, N.Y. Labor Law § 27-a(4)(a). (Defs.’ 56.1 ¶¶ 8-10.)

The FDNY previously granted qualifying firefighters medical and religious accommodations, exempting their compliance with the grooming policy. (Id. ¶¶ 34-35, 51-52.)⁴ These accommodations allowed firefighters to maintain close-cropped facial hair while remaining on full duty. (Id. ¶¶ 34-35, 51-52, 54-55.) Plaintiff, who practices Judaism and maintains facial hair as part of his faith, received this accommodation. (Id. ¶¶ 6, 31, 63, 72.)⁵ In February 2017, he was granted a religious accommodation, which formally exempted his compliance with the FDNY's clean-shave grooming policy. (Id. ¶¶ 31, 71.) Plaintiff served as a full-duty firefighter with close-cropped facial hair following his accommodation. (Id. ¶¶ 31, 34.)

The FDNY later initiated a review of its grooming policy—in particular, the Department's practice of providing medical accommodations for close-cropped facial hair. (Id. ¶¶ 33-35, 39, 41.) After the FDNY completed this review in May 2018, Fire Commissioner Daniel Nigro decided to end the Department's accommodation program. (Id. ¶¶ 48-49.) He testified that safety concerns and OSHA's Respiratory Protection Standard compelled the FDNY to adhere strictly to its clean-shave policy. (Id. ) As a result, the FDNY revoked all existing accommodations. (Id. ¶¶ 50-52.)

Soon after Commissioner Nigro's decision, the FDNY informed Plaintiff and other affected firefighters that they could no longer maintain close-cropped facial hair and comply with the FDNY's Safety Standards. (Id. ¶¶ 52-55, 74-75.) Noncompliance meant they could no longer serve as full-duty firefighters. (Id. ¶¶ 54-56.) After a subsequent duty evaluation on May 22, 2018, the FDNY determined officially that Plaintiff no longer complied with the FDNY's Safety Standards because of his facial hair. (Id. ¶¶ 75-78.) He was reassigned to "light duty," effective immediately, and he remains on light duty today. (Id. ¶ 78; Pl.’s Rule 56.1 Stmt. ("Pl.’s 56.1") (Dkt. 57) ¶ 97.)

A firefighter on light duty is generally removed from the fire-house, (Pl.’s 56.1 ¶ 9; Dep. of Fire Commissioner Daniel Nigro ("Nigro Dep.") (Dkt. 56-10) at 52:22-53:4; 78:14-17), and assigned to "non-firefighter duties," (Defs.’ 56.1 ¶¶ 56-58). These non-firefighter duties often involve administrative work. (Pl.’s 56.1 ¶ 9; Nigro Dep. at 78:14-79:2; Dep. of Don Nguyen ("Nguyen Dep.") (Dkt. 56-8) at 48:23-49:9.) Since his transfer to light duty, Plaintiff no longer performs "all the essential functions of a firefighter"—for example, he no longer responds to fires. (Defs.’ 56.1 ¶¶ 23, 56, 58.) His time on light duty has included jobs with the FDNY's Counterterrorism Unit and the Rest and Care Unit. (Id. ¶¶ 79-80.) His responsibilities within those units have included acting as a victim during counterterrorism drills and aiding full-duty firefighters during active calls. (Pl.’s 56.1 ¶¶ 59-60; Nigro Dep. at 79:21-80:5.)

Plaintiff's claims of employment discrimination arise from the FDNY's reimplementation of its grooming policy, revocation of Plaintiff's religious accommodation to maintain close-cropped facial hair, and placement of Plaintiff on light duty. He now seeks declaratory, injunctive, and compensatory relief for these alleged violations. (Second Am. Compl. at 23.)

II. LEGAL STANDARD

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A ‘material’ fact is one capable of influencing the case's outcome under governing substantive law, and a ‘genuine’ dispute is one as to which the evidence would permit a reasonable juror to find for the party opposing the motion." Figueroa v. Mazza , 825 F.3d 89, 98 (2d Cir. 2016) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). The movant bears the burden of demonstrating the absence of a question of material fact.

"The role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Brod v. Omya, Inc. , 653 F.3d 156, 164 (2d Cir. 2011). "In determining whether summary judgment is appropriate, this court will construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Id. Nevertheless, "[a] party may not...