United States District Court, D. Columbia.
For MANU KENNEDY, Plaintiff: Gary M. Gilbert, LEAD ATTORNEY, Shannon C. Leary, LAW OFFICES OF GARY M. GILBERT AND ASSOCIATES, P.C., Silver Spring, MD.
For VINCENT G. GRAY, in his official capacity of Mayor of Washington, District of Columbia, DC GOVERNMENT, IRVIN B. NATHAN, in his official capacity as Attorney General, District of Columbia, Defendants: Jonathan Hale Pittman, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL/DC, Washington, DC; Shana Lyn Frost, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC.
For KENNETH B. ELLERBE, in his official capacity of Chief, District of Columbia Fire and EMS Department, DC FIRE & EMS DEPARTMENT, Defendants: Shana Lyn Frost, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC.
CHRISTOPHER R. COOPER, United States District Judge.
Plaintiff Manu Kennedy, a former District of Columbia firefighter, refused to comply with a policy requiring firefighters to be clean-shaven so that they can safely wear their respirators. Kennedy has pseudofolliculitis barbae (" PFB" ), a skin condition that disproportionately affects African-American men and can lead to irritation and infection when shaving one's face closely. His dermatologist recommended he maintain a one-eighth inch beard to prevent irritation, but the fire department did not consider PFB a disability and refused to accommodate it. Instead, the department assigned Kennedy to conduct fire inspections until he ultimately resigned in May 2013. Kennedy initially alleged 28 counts of disability discrimination, racial discrimination, failure to accommodate, medical privacy violations, and retaliation as a result of the fire department's application of the grooming policy to him, but has since agreed to withdraw several counts. Defendants, the District of Columbia and several of its offices and officials, move to dismiss several parties to the suit, the counts related to Kennedy's disability discrimination and failure to accommodate claims, and his request for declaratory and injunctive relief. The District does not seek dismissal of Kennedy's remaining race discrimination, retaliation, or medical privacy claims. The counts that remain at issue hinge largely on whether Kennedy had a disability as defined by the Americans with Disabilities Act. This determination in turn depends on whether the Americans with Disabilities Amendments Act, which went into effect on January 1, 2009, applies to Kennedy's claims. Because the Court finds that the amendments do not apply here and that PFB does not constitute a disability under the prevailing pre-amendment interpretation of the statute, the Court will grant the partial motion to dismiss.
A. The Fire Department's Shaving Policy
In 2001, the District of Columbia Fire and Emergency Medical Services Department (" FEMS" ) implemented a grooming policy prohibiting firefighters from having beards. Compl. ¶ 77. The purpose of the policy was to ensure that firefighters' respirators fit properly. Id. ¶ 82. Imperfections in fit between a firefighter's face and the mask of his or her respirator--due to an unshaven face or other factors like scars--can cause clean air to escape the mask rather than circulating inside it, leading to more rapid depletion of the firefighter's air supply. Id. ¶ ¶ 60, 61--63, 65. After several firefighters challenged the policy under the Religious Freedom Restoration Act (" RFRA" ), this court preliminarily enjoined the department from enforcing it against those who refused to comply on religious grounds. Id. ¶ 78. The court ultimately granted summary judgment to the plaintiffs, concluding that " the fire department may not impose a shaving requirement on men who wear their beards for religious reasons." Potter v. District of Columbia,
No. 01-cv-1189, 2007 WL 2892685, at *1 (D.D.C. Sept. 28, 2007), aff'd, 558 F.3d 542, 385 U.S.App.D.C. 26 (D.C. Cir. 2009). Firefighters who are not claiming a religious exemption, however, still must comply with the grooming requirements.
B. Kennedy's Employment with the Fire Department
Kennedy worked for FEMS from 2002 through 2013. Compl. ¶ 23. The relevant events in this case began in May 2008, when Kennedy mentioned to a doctor at the fire department clinic that he had a spot on his face that would not heal due to PFB. Id. ¶ ¶ 106--08. PFB is a skin condition that causes persistent irritation on a person's face when he shaves because regrowing hairs curl into the skin instead of growing straight out of the follicle. Id. ¶ ¶ 39, 40--43, 45. According to the National Institutes of Health and other sources, PFB disproportionately affects African-American men. Id. ¶ ¶ 45--48. After his clinic appointment, Kennedy's personal dermatologist instructed him to maintain one-eighth of an inch of facial hair. Id. ¶ ¶ 111, 114--17. Kennedy provided medical documentation of his diagnosis and treatment to FEMS on July 2, 2008, which prompted a clinic doctor to place him on limited duty. Id. ¶ 112. Kennedy then requested sick leave due to his PFB, which was denied. Id. ¶ ¶ 124--25. After he reported for duty noncompliant with the shaving policy on July 10, 2008, FEMS required Kennedy to explain his inability to shave; he indicated that he believed he was being discriminated against and asked FEMS to accommodate his PFB. Id. ¶ ¶ 128__ 31. A battalion chief notified Kennedy of proposed penalties for non-compliance and his decision to place Kennedy on administrative leave during the last week of July 2008. Id. ¶ ¶ 135--38. In response, Kennedy submitted a memorandum explaining his version of events, indicating that he believed the proposed discipline was discriminatory. Id. ¶ ¶ 136--37. After a clinic doctor told Kennedy's dermatologist that he was still required to be clean shaven in order to wear a respirator safely, id. ¶ ¶ 139--140, Kennedy filed a charge with the Equal Employment Opportunity Commission (" EEOC" ) on or around July 31, 2008 alleging discrimination on the bases of race and disability, id. ¶ ¶ 7--8.
In August 2008, FEMS officials suspended Kennedy for violating the facial hair policy, which he appealed. Id. ¶ ¶ 141--46, 164. The same month, Kennedy passed a fit test while maintaining a beard. Id. ¶ ¶ 151--52. A fit test examines " the seal between a firefighter's face and the respirator mask" in order to " determine whether a firefighter can wear a mask without risk of air leakage." Id. ¶ ¶ 83--85. Kennedy then missed work due to another health issue from October 2008 until January or February 2009, during which time his appeal of his suspensions was denied. Id. ¶ ¶ 153--57, 163, 165--67. After Kennedy returned to the Fire Prevention Division on limited/light duty status, FEMS informed him that he would be subject to the involuntary retirement process. Id. ¶ ¶ 172--75, 182. The clinic recommended that he be considered for disability retirement in September 2009. Id. ¶ ¶ 188, 191. Nine months later, after Kennedy refused to undergo a psychological examination--believing it was discriminatory and retaliatory--FEMS terminated his limited duty status. Id. ¶ ¶ 208, 213--21. In turn, Kennedy was deemed to be ineligible for disability retirement because he had returned to full duty. Id. ¶ 239. From June 2010 until September 2010, Kennedy served on full duty status in the department's training academy. Id. ¶ 32. FEMS later assigned him to office duty in the Fire Prevention Division from September 2010 through February 2011 and on fire inspection duty from February 2011 until he resigned in May 2013. Id. ¶ ¶ 33, 35--36, 284, 286--87.
Kennedy reaffirmed his request to maintain one-eighth of an inch of facial hair and amended his EEOC complaint several times between July 2008 and July 2010, adding actions taken against him for his refusal to comply with the shaving policy and the additional ground of retaliation. Id. ¶ ¶ 9--17. In August 2012, the EEOC issued a determination of the charge, finding reasonable cause to believe that discrimination occurred, and referred the matter to the Department of Justice for consideration. Id. ¶ 20. In June 2013, Kennedy received a Notice of Right to Sue letter from the Department of Justice. Id. ¶ 21. He brought this suit on September 11, 2013.
II. Standard of Review
To overcome a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly,550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Facial plausibility entails " factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. While the court " must take all of the factual allegations in the complaint as true," legal conclusions " ...