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Litzman v. New York City Police Department

United States District Court, Second Circuit

November 15, 2013

NEW YORK CITY POLICE DEPARTMENT, THE CITY OF NEW YORK, RAYMOND W. KELLY, as Commissioner of the New York City Police Department, Defendants.


HAROLD BAER, Jr., District Judge.[1]

Before the Court is a motion for summary judgment brought by Plaintiff Fishel Litzman ("Plaintiff") against Defendants New York City Police Department ("NYPD"), the City of New York, and Raymond W. Kelly, as the Commissioner of the New York City Police Department (together "Defendants"). Defendants cross-move for summary judgment. Plaintiff challenges the NYPD's limited religious exemption to its general no-beard policy based on the Free Exercise and Due Process clauses of the U.S. Constitution pursuant to 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII"), as well as the Free Exercise Clause in Article I, Section 3 of the New York Constitution, and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. For the reasons below, Plaintiff's motion for summary judgment is GRANTED with respect to all but the Due Process and Title VII claims.


The following facts are not in dispute. Plaintiff follows the rules and traditions of the Chabad Lubavitch Jewish community, and his Orthodox Jewish faith prohibits him from cutting or trimming his facial hair. (Pl.'s 56.1 ¶¶ 3, 4.) His facial hair naturally grows out to be one inch from his skin. ( Id. ¶ 5.) Plaintiff was accepted into the NYPD's Police Academy and was sworn in as a Probationary Police Officer on January 9, 2012. ( Id. ¶ 15.) He resigned from his previous employment at the NYPD's direction. ( Id. ¶ 17.)

The NYPD's Patrol Guide Procedure 203-07 generally prohibits police officers from growing beards but makes exceptions for undercover duties, medical conditions, and religious accommodations, although the latter two depend on written approval by the Police Surgeon or the Deputy Commissioner of the NYPD's Office of Equal Employment Opportunity ("OEEO"). (McNally Decl. Ex. E at 2-3.) In practice, medical and religious accommodations related to facial hair are limited to beards that are one millimeter or less in length. (Pl.'s 56.1 ¶ 26; Defs.' 56.1 ¶ 26.) The NYPD has failed to produce a document that officially states the one-millimeter rule.[2] ( See id. ) When Plaintiff made a religious accommodation request with respect to his one-inch beard, he was repeatedly told by the OEEO that his beard would have to be trimmed to one millimeter or less in length, and on January 24, 2012, his requested accommodation was denied. (Pl.'s 56.1 ¶¶ 20, 21.) Plaintiff received four "Command Disciplines" regarding his beard in January and February of 2012, for violating Patrol Guide Procedure 203-07, "Performance on Duty - Personal Appearance, " and shortly thereafter, he submitted requests to the Police Commissioner and the Deputy Commissioner seeking an accommodation, but received no response. ( Id. ¶ 24.) On June 8, 2012, Plaintiff received a termination letter. ( Id. ¶ 25.) At the time of his termination, Plaintiff ranked in the top 1.3% of his Police Academy class. (Defs.' 56.1 ¶ 19.)

Defendants agree that the NYPD presently has police officers with beards in excess of one millimeter in length, but those officers are either working undercover or are in violation of the Patrol Guide Procedure. ( Id. ¶ 27.) The NYPD's position is that it cannot accommodate Plaintiff's one-inch beard because newly graduated police officers must shave at least once each year to be certified to use an MSA Millennium model respirator. ( Id. ¶ 27.) The first portion of the training program for the use of this apparatus requires the officer to go through a "fit test, " which is a series of seven one-minute tests to determine whether the respirator properly seals the officer's face. ( Id. ¶¶ 36, 38-40.) Proper sealing is not possible with facial hair. ( Id. ) The federal regulations promulgated by the Occupational Health and Safety Administration ("OSHA") require both initial and annual fit-testing and prohibit the use of respirators by employees with facial hair. ( Id. ¶ 42; 29 C.F.R. 1910.134(f)(2), (g)(1)(i)(A).) The NYPD's Chemical Ordinance, Biological and Radiological Awareness Training Program ("CBRN Certification") was incorporated into the Police Academy's curriculum in 2005, and all recent and new graduates of the Police Academy are required to be CBRN-certified, pursuant to NYPD policy. (O'Keefe Decl. ¶ 9; Defs.' 56.1 ¶¶ 57, 60.) In addition, other police officers are certified upon request or if certification is relevant to an assignment. ( Id. ¶ 61.) At present, while 69.3% of the NYPD's officers have been trained and issued an MSA Millennium respirator, 99.8% of the July 2011 recruit class and 100% of January and July 2012 recruit classes have been trained and certified. ( Id. ¶¶ 62, 58.)


Summary judgment should be granted in favor of a movant where "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56 (a). In this case, at oral argument, Defendants stated that they had "not anticipate[d] that the Plaintiff would basically accept for purposes of this motion all of the facts that we asserted as true." June 27, 2013, Oral Argument Tr. 15: 9-11. As the parties agree that the facts are undisputed, I need only consider the legal questions the parties raise.

A. Constitutional Claims Pursuant to § 1983

Plaintiff brings his constitutional claims pursuant to 42 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979). To successfully make a claim under Section 1983, a plaintiff must prove that "(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citation omitted). That Defendants acted under color of state law is not disputed. Rather, I consider below whether Defendants' conduct deprived Plaintiff of his constitutional rights under the Free Exercise and Due Process clauses of the U.S. Constitution.

1. Free Exercise Claim under the U.S. Constitution

Under the Free Exercise Clause of the First Amendment, which applies to the states through the Fourteenth Amendment, "enforcement of laws or policies that substantially burden the exercise of sincerely held religious beliefs is subject to strict scrutiny, " and once shown, in order to prevail, the government must demonstrate that such a law is "narrowly tailored" to advance "interests of the highest order." Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 574 (2d Cir. 2002). These interests must be protected "sometimes even at the expense of other interests of admittedly high social importance." Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). "Where the government seeks to enforce a law that is neutral and of general applicability, however, then it need only demonstrate a rational basis for its enforcement, even if enforcement of the law incidentally burdens religious practices." Id. (citing Emp't Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990).

Citing Smith, Defendants urge the Court to apply the rational basis test because the NYPD's no-beard policy, as well as the one-millimeter exemption, is a generally applicable and neutral rule. I disagree; "[f]acial neutrality is not determinative" when the record shows that Plaintiff was terminated pursuant to a policy that is not uniformly enforced. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993). The Supreme Court instructs that "[t]he Free Exercise Clause... extends beyond facial discrimination" and that "[o]fficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality." Id. Indeed, Smith approves strict scrutiny in certain circumstances: "where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship' without compelling reason." 494 U.S. at 884 (citing Bowen v. Roy, 476 U.S. 693, 708 (1986)). Here, the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound. The record shows that the NYPD provides temporary exemptions to police officers who grow beards beyond the one-millimeter limit for special occasions, such as religious holidays, weddings, and funerals. See McNally Decl. Ex. F. Defendants also admit that the NYPD has police officers with beards in excess of one-millimeter in length, not only because of formal exemptions due to undercover assignments, but also because the NYPD does not always enforce its personal appearance standards. (Defs.' 56.1 ¶ 27.) Because there is evidence that the NYPD exercises discretion with respect to a facially neutral rule in a discriminatory fashion, strict scrutiny is appropriate. See Rector, Wardens, & Members of Vestry of St. Bartholomew's Church v. City of N. Y., 914 F.2d 348, 354-55 (2d Cir.1990).

Interestingly, Defendants attempt to distinguish these officers from the Plaintiff by arguing that the one-millimeter limit is really a proxy for an officer's willingness to shave for CBRN Certification pursuant to OSHA regulations. See Defs.' 56.1 ¶ 27 ("nevertheless, these officers, [who have beards longer than one millimeter without any exemption] unlike Litzman, can and will shave their beards if needed for CBRN recertification training, or in the event of an actual emergency requiring them to don and use the MSA Millennium respirator"). I begin by noting that the record does not reflect that CBRN Certification was the real ground for Plaintiff's termination. See Pl.'s 56.1 ¶ 20. Indeed, the Plaintiff was not informed that his termination was related to CBRN Certification at all; rather, he "was instructed at the NYPD Office of Equal Employment Opportunity on January 13, January 17, and January 24, 2012, that he would have to trim his beard not to exceed one millimeter in length, " without an explanation as to why (Pl.'s 56.1 ¶ 20.) Further and more troubling is the NYPD's Operations Order No. 44, which provides a medical exemption to the regular CBRN certification procedure, permitting officers to serve in a "Limited Capacity" status based on "the nature or severity of their medical condition." (McNally Decl. Ex. B, at 1.) Pursuant to that order, qualifying officers are "prohibited from participating in the fit-testing component... and prohibited from wearing a respirator or being certified for CBRN/HazMat Operations Level field deployment, " but are nonetheless "allowed to participate in other aspects of the two (2) day and/or recertification training."[3] ( Id. ) If the NYPD cannot accommodate Plaintiff's one-inch beard because of the CBRN certification requirement, but has provided a medical exemption, per Operations Order No. 44, all the more reason to apply strict scrutiny to the one-millimeter rule. In a similar challenge to a Newark Police Department policy where medical exemptions were considered for the Department's no-beard policy, but religious ...

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