Judge Denies TRO To Atlantic City Firefighter Over Religious Beard

A US District Court judge has denied a request for a temporary restraining order against the Atlantic City Fire Department to block disciplinary proceedings against a firefighter who has refused to shave his beard due to his religious beliefs.

Alexander Smith filed suit on February 25, 2019 claiming the fire department’s rules prohibiting beards discriminates against him on account of his religion, violated his First Amendment Rights, and violates the Equal Protection Clause of the US Constitution. Smith claims that because his assignment as an air mask technician no longer requires him to don SCBA, he should be exempted from the no-beard requirement.

Judge Robert B. Kugler ruled today that there is insufficient likelihood that Smith will prevail on the merits of any of his claims, to justify a TRO. Quoting from the decision:

  • Plaintiff’s Free Exercise challenge is not likely to succeed on the merits under the rational basis test.
  • ACFD’s stated interest in the grooming policy is safety, and courts have long recognized that safety is a legitimate governmental interest.
  • The grooming policy is also rationally related to safety for several obvious reasons. First, Plaintiff admits that facial hair creates additional safety risks for firefighters by inhibiting a mask’s seal.
  • The testimony indicates that the harm is two-fold. On one hand, toxic fumes and smoke may enter an ill-fitting mask. On the other, oxygen supplies may more quickly drain with an ill-fitting mask.
  • Second, the actual grooming policy mentions the possibility of facial hair interfering with such seal. For example, Paragraph 6 states, “Facial hair of any type shall not interfere with the seal of SCBA face piece.”
  • The Court therefore finds that the grooming policy is rationally related to ACFD’s legitimate interest in safety.
  • The Court next considers Plaintiff’s Equal Protection claims.
  • Plaintiff’s Equal Protection claims are unlikely to succeed on the merits because Plaintiff provides no evidence that he was treated differently than members of an unprotected class. For example, Plaintiff does not provide a single name of an ACFD member permitted to wear a beard for a non-religious purpose. Relatedly, Chief Evans testified that the grooming policy required all members to be clean shaven, regardless of religion. At best, Plaintiff merely suggests that the ACFD has failed to have all of its members comply with its annual fit test.
  • Despite Plaintiff’s reliance on this point, he has not shown that any of these un-tested members wore beards; nor has he shown that ACFD permitted the wearing of the beards for non-religious purposes. Plaintiff’s Equal Protection claim is therefore unlikely to succeed on the merits.
  • Plaintiff next claims that Defendants violated his rights under Title VII of the Civil Rights Act of 1964.
  • Specifically, Plaintiff claims that Defendants failed to accommodate his reasonable request for a religious accommodation that would permit his wearing of a bear and retaliated against him based on that request. The Court finds that both claims are unlikely to succeed on the merits.
  • For the reasons articulated above, the Court DENIES Plaintiff’s Motion for a Temporary Restraining Order.

Here is a copy of the decision: Smith v. City of Atl. City_ 2019 U.S. Dist. LEXIS 47892

The case is far from over. Typically requests for TRO are handled on an expedited basis with parties being limited in their ability to present a case. The case will now move forward with a more thorough consideration of the merits of Smith’s claims. In the interim, the fire department will be able to discipline Smith if he refuses to shave.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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