Hamilton v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

KEVIN HAMILTON,

MEMORANDUM & ORDER

Plaintiff, 18-CV-4657 (NGG) (VMS)

-against-

CITY OF NEW YORK, DANIEL NIGRO, KARE N

HURWITZ, SHENECIA BEECHER, FDNY, JOHN

AND JANE DOES 1-10,

Defendants.

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 pol-

icy for all full-duty firefighters. The FDNY previously granted

Plaintiff a religious accommodation to maintain close-cropped fa-

cial hair while continuing to serve as a full-duty firefighter. But

the Department later ended its accommodation program and re-

voked Plaintiff’s exemption from the clean-shave policy. As a

result, Plaintiff could not comply with the grooming policy, and

the FDNY transferred him from full-duty firefighting responsibil-

ities 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, “Defend-

ants”), 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 Constitu-

tion 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 ac-

commodation 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 ra-

cial 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 Ad-

ministration (“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 sum-

mary 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’ dis-

pute 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

1 When quoting cases, unless otherwise noted, all citations and internal

quotation marks are omitted and all alterations are adopted.

2 (Not. of Mot. for Summ. J. (Dkt. 45); Defs.’ Mot. for Summ. J. (“Defs.’

Mot.”) (Dkt. 48); Pl.’s Opp. to Mot. for Summ. J. (“Pl.’s Opp.”) (Dkt. 50);

Defs.’ Reply in Support of Mot. for Summ. J. (“Defs.’ Reply”) (Dkt. 52);

Not. of Cross Mot. for Summ. J. (Dkt. 54); Pl.’s Mot. for Summ. J. (“Pl.’s

Mot.”) (Dkt. 58); Defs.’ Opp. to Mot. for Summ. J. (“Defs.’ Opp.”) (Dkt.

60); Pl.’s Reply in Support of Mot. for Summ. J. (“Pl.’s Reply”) (Dkt. 61).)

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.

BACKGROUND3

Plaintiff became a New York City firefighter after attending the

FDNY’s Firefighter Academy, which provides intensive training

3 The court constructs the following statement of facts from the parties’

Local Rule 56.1 Statements accompanying their cross-motions for sum-

mary judgment and the admissible evidence they submitted. Local Rule

56.1(c) provides that a statement of material fact “will be deemed to be

admitted for purposes of the motion unless specifically controverted” by a

corresponding statement; Local Rule 56.1(d) provides that “[e]ach state-

ment by the movant or opponent . . . including each statement

controverting any statement . . . must be followed by citation to evidence

to which would be admissible.” And Federal Rule of Civil Procedure 56(e)

provides that “[i]f a party fails to properly support an assertion of fact or

fails to properly address another party’s assertion of fact as required by

Rule 56(c), the court may . . . consider the fact undisputed for purposes of

the motion.” Fed. R. Civ. P. 56(e)(2).

Based on these rules, in reviewing a parties’ Local Rule 56.1 counterstate-

ments, the court may strike specific but defective denials, see Holtz v.

Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“Where there are no

citations or where the cited materials do not support the factual assertions

in the Statements, the court is free to disregard the assertion.”), and ignore

nonspecific denials, see id. at 73-74 (“A district court has broad discretion

to determine whether to overlook a party's failure to comply with local

court rules.”).

The court has reviewed the parties’ statements and counterstatements of

fact, as well as the evidence submitted in support of each statement. This

background is the result of that review. Where a party has failed to specif-

ically controvert a material statement of fact, and where that statement of

fact is supported with admissible evidence in the record, the court has

deemed that statement undisputed for purposes of deciding the motion.

See Russell v. Aid to Developmentally Disabled, Inc., 753 F. App’x 9, 12 (2d

Cir. 2018) (summary order); Giannullo v. City of New York, 322 F.3d 139,

140 (2d Cir. 2003) (“If the opposing party then fails to controvert a fact so

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 emer-

gency 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 Stand-

ards. (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 prohib-

its “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 regu-

lation, 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 Inter-

pretation Letter (Dkt. 46-1).) This Standard is binding on the

set forth in the moving party’s Rule 56.1 statement, that fact will be

deemed admitted.”).

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 ac-

commodation. (Id. ¶¶ 31, 34.)

The FDNY later initiated a review of its grooming policy—in par-

ticular, 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 ac-

commodation 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.)

4 The FDNY would grant an accommodation only if the requesting fire-

fighter passed a “fit test,” a standardized test designed by OSHA to ensure

that the respirator properly seals against the mask-wearer’s face. (Defs.’

56.1 ¶ 13; Pl.’s Rule 56.1 ¶ 25.) OSHA’s regulation of fit tests also covers

facial hair: “The test shall not be conducted if there is any hair growth

between the skin and the facepiece sealing surface,” 29 C.F.R. 1910.134(f).

(Defs.’ 56.1 ¶ 14.)

5 Plaintiff testified that he also maintained close-cropped facial hair as a

full-duty firefighter before receiving an official accommodation. (Pl.’s Rule

56.1 ¶ 21.)

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 as-

signed 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 (“Ngu-

yen 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 in-

cluded 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 fa-

cial 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.)

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the mo-

vant 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’ dis-

pute 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 (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 con-

strue the facts in the light most favorable to the non-moving party

and must resolve all ambiguities and draw all reasonable infer-

ences against the movant.” Id. Nevertheless, “[a] party may not

rely on mere speculation or conjecture as to the true nature of

the facts to overcome a motion for summary judgment,” and

“[m]ere conclusory allegations or denials . . . cannot by them-

selves create a genuine issue of material fact where none would

otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.

2010). Put another way, the nonmovant must offer “concrete ev-

idence from which a reasonable juror could return a verdict in

his favor.” Anderson, 477 U.S. at 256.

In discrimination cases, the merits typically turn upon an em-

ployer’s intent, necessitating the exercise of abundant caution in

granting summary judgment for the employer. See Holcomb v.

Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). “Where an em-

ployer has acted with discriminatory intent, direct evidence of

that intent will only rarely be available, so that affidavits and

depositions must be carefully scrutinized for circumstantial

proof, which, if believed, would show discrimination.” Id. “Even

in the discrimination context, however, a plaintiff must provide

more than conclusory allegations to resist a motion for summary

judgment.” Id.

“These procedures continue to hold true when [the court] con-

sider[s] cross-motions for summary judgment.” Bey v. City of New

York, 999 F.3d 157, 164 (2d Cir. 2021). In such a case, the court

“assess[es] each motion on its own merits and . . . view[s] the ev-

idence in the light most favorable to the party opposing the

motion, drawing all reasonable inferences in favor of that party.”

Id. Accordingly, in reviewing Defendants’ motion for summary

judgment, the court views the record in the light most favorable

to Plaintiff; in reviewing Plaintiff’s motion for summary judg-

ment, the court views the record in the light most favorable to

Defendants.

DISCUSSION

A. Religious Discrimination and Equal Protection

Claims

Plaintiff’s religious discrimination and equal protection claims

under the NYSHRL and pursuant to Sections 1981 and 1983 “are

analyzed in tandem with [Plaintiff’s] Title VII claims because the

standards for liability under these laws are the same.” See Lewis

v. New York City Transit Auth., 12 F. Supp. 3d 418, 438 (E.D.N.Y.

2014); see also Simmons v. Akin Gump Strauss Hauer & Feld, LLP,

508 Fed. App’x. 10, 12 (2d Cir. 2013) (unpublished) (reviewing

plaintiff’s racial discrimination claims under Section 1981, Title

VII, and the NYSHRL together); Ruiz v. Cty. of Rockland, 609 F.3d

486, 491 (2d Cir. 2010) (Sections 1981 and 1983 and Title VII);

Ferraro v. Kellwood Co., 440 F.3d 96, 99 (2d Cir. 2006) (NYSHRL

and Title VII); Feingold v. New York, 366 F.3d 138, 159 (2d Cir.

2004) (equal protection and Title VII).6 Accordingly, Plaintiff’s

claims are considered together, through the framework of Title

VII.

Title VII prohibits discrimination in employment on the basis of

religion. An employer may not “fail or refuse to hire or . . . dis-

charge any individual, or otherwise . . . discriminate against any

individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual’s . . . re-

ligion.” 42 U.S.C. § 2000e–2(a)(1). “The term ‘religion’ includes

all aspects of religious observance and practice, as well as belief,

unless an employer demonstrates that he is unable to reasonably

accommodate to an employee’s or prospective employee’s reli-

gious observance or practice without undue hardship on the

conduct of the employer’s business.” Id. § 2000e(j).

Employment discrimination claims are analyzed under the bur-

den-shifting framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). Under this framework, the plaintiff

must first establish a prima facie case for discrimination. If the

plaintiff makes this prima facie case, the burden then shifts to the

defendant to rebut that case. See McDonnell Douglas, 411 U.S. at

802-03. If the defendant succeeds, the plaintiff must produce suf-

ficient facts to support the discrimination claim by a

preponderance of evidence. See id. This general framework is

subject to unique demands specific to different types of discrimi-

nation claims. See, e.g., Bey, 999 F.3d at 170 (disparate impact);

6 The Second Amended Complaint is vague as to whether Plaintiff also

pursues a claim under the New York State Constitution. (See Second Am.

Compl. ¶ 1 (citing Article I, § 11 of the New York Constitution in the Pre-

liminary Statement).) To the extent that Plaintiff makes a religious

discrimination or equal protection claim under the New York Constitution,

those claims would also be analyzed in tandem with the federal anti-dis-

crimination allegations. See Town of Southold v. Town of E. Hampton, 477

F.3d 38, 53 n.3 (2d Cir. 2007) (“[T]he Equal Protection Clauses of the

federal and New York Constitutions are coextensive.”).

Feingold, 366 F.3d at 152 (disparate treatment); Knight v. Con-

necticut Dep’t of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001)

(failure to accommodate).

Plaintiff claims that the FDNY discriminated against him on the

basis of religion under three theories: (1) Defendants failed to

provide him with a reasonable accommodation (the failure-to-

accommodate claim); (2) Defendants treated him differently be-

cause of his religion (the disparate treatment claim); and

(3) Defendants’ grooming policy had a discriminatory effect on

firefighters who maintain facial hair in accordance with their

faith (the disparate impact claim). See Ricci v. DeStefano, 557 U.S.

557, 577 (2009) (“Title VII prohibits both intentional discrimina-

tion (known as disparate treatment) as well as . . . practices that

are not intended to discriminate but in fact have a disproportion-

ately adverse effect on minorities (known as disparate

impact).”); Baker v. The Home Depot, 445 F.3d 541, 546 (2d Cir.

2006) (“It is an unlawful employment practice . . . for an em-

ployer not to make reasonable accommodations, short of undue

hardship, for the religious practices of his employees and pro-

spective employees.”). Plaintiff’s claims for failure to

accommodate, disparate treatment, and disparate impact are as-

sessed under the specific requirements of each claim, within the

burden-shifting framework.

1. Failure to Accommodate

To establish a prima facie case of religious discrimination based

on a failure to accommodate, plaintiffs must show that “(1) they

held a bona fide religious belief conflicting with an employment

requirement; (2) they informed their employers of this belief;

and (3) they were disciplined for failure to comply with the con-

flicting employment requirement.” Knight, 275 F.3d at 167. Once

the plaintiff establishes a prima facie case, the burden shifts to

the employer to show that it offered the plaintiff “a reasonable

accommodation, unless doing so would cause the employer to

suffer an undue hardship.” Cosme v. Henderson, 287 F.3d 152,

158 (2d Cir. 2002). “An accommodation . . . cause[s] undue

hardship whenever it results in more than a de minimis cost to

the employer.” Baker, 445 F.3d at 548.

a. Prima Facie Case

It is uncontested that Plaintiff (1) held a sincere religious belief

that conflicted with the FDNY’s employment requirement, and

(2) informed the FDNY about this belief. The parties dispute

whether Plaintiff’s involuntary transfer to light duty satisfies

prong three, the discipline prong. “Although the Second Circuit

has not directly addressed what the discipline prong of a failure

to accommodate religious discrimination claim requires, it has

suggested that this can be equated with an adverse employment

action.” St. Juste v. Metro Plus Health Plan, 8 F. Supp. 3d 287,

316 (E.D.N.Y. 2014) (collecting cases).

“An adverse employment action is a materially adverse change in

the terms and conditions of employment.” Mathirampuzha v. Pot-

ter, 548 F.3d 70, 78 (2d Cir. 2008). “To be materially adverse, a

change in working conditions must be more disruptive than a

mere inconvenience or an alteration of job responsibilities.” Id.

“Examples of such a change include termination of employment,

a demotion evidenced by a decrease in wage or salary, a less dis-

tinguished title, a material loss of benefits, significantly

diminished material responsibilities, or other indices unique to a

particular situation.” Id.

The parties argue principally about pecuniary effects following

placement on light duty like overtime wages, promotion oppor-

tunities, and other benefits. (Defs.’ Mot. at 4-6; Pl.’s Opp. at 4-5,

7.) Defendants insist that “reassignments which do not impact an

employee’s salary or benefits do not constitute an adverse em-

ployment action.” (Defs.’ Mot. at 5.) But “[a] materially adverse

change in the terms and conditions of employment is not limited

solely to pay”; a materially adverse change “may encompass

other less tangible changes such as . . . significantly diminished

material responsibilities.” Simms v. City of New York, 160 F. Supp.

2d 398, 406 (E.D.N.Y. 2001); see also Lore v. City of Syracuse, 670

F.3d 127, 170 (2d Cir. 2012) (“The protections provided by Title

VII are not limited to instances of discrimination in pecuniary

emoluments.”). In other words, an employer cannot avoid an ad-

verse employment finding by exalting form over substance and

asking a court to consider only the aggrieved employee’s reas-

signment on paper without addressing other potentially adverse

effects.

Here, Plaintiff suffered an adverse employment action because

his placement on light duty has resulted in significantly dimin-

ished material responsibilities in the unique context of the FDNY.

The FDNY trained Plaintiff to become a firefighter. (See Defs.’

56.1 Resp. ¶¶ 2, 4; Nigro Dep. at 23:8-24:11; Nguyen Dep. at

30:11-23.) Prior to his reassignment, he had served as a full-duty

firefighter for almost five years. (Defs.’ 56.1 ¶¶ 65-68.) On light

duty, however, he can no longer perform “the essential job[]

functions of a Firefighter.” (Defs.’ 56.1 ¶ 23; Nigro Dep. at 17:25-

18:7.) “Plaintiff was removed from a position where he sup-

pressed fires and conducted emergency rescue missions to a job

that is essentially clerical.” Simms, 160 F. Supp. 2d at 406 (find-

ing that a firefighter’s transfer to light duty status represented an

adverse employment action).

Placement on light duty is not a purely lateral transfer in the con-

text of the FDNY, nor is it a mere alteration in job responsibilities.

Rather, it works a “radical change in the nature of [Plaintiff’s]

work” that “interfere[s] with a condition or privilege of employ-

ment.” See Rodriguez v. Board of Educ., 620 F.2d 362, 366 (2d

Cir. 1980). (See also Nigro Dep. 17:14-24.)

The disconnect between Plaintiff’s unchanged title and base sal-

ary on the one hand, and his diminished responsibilities on the

other, are particularly salient in this case. A firefighter on light

duty can perform only “non-firefighter duties.” (Defs.’ 56.1 ¶¶ 23,

56-58.) Plaintiff’s non-firefighter duties have included acting as

a victim for other firefighters in counterterrorism drills and

providing aid to full-duty firefighters responding to fires. (Pl.’s

56.1 ¶¶ 59-60; see also Nigro Dep. at 79:21-80:5.) As a “light

duty” firefighter, Plaintiff is a “firefighter” in title only. Indeed,

the degree of Plaintiff’s job diminishment is exacerbated when

viewed in the unique context of the FDNY, where “[p]lacement

on light duty” strikes “[a] blow to those who visualize themselves

as public servants.” See Bey v. City of New York, 437 F. Supp. 3d

222, 236-37 (E.D.N.Y. 2020) (finding that “[p]lacement on light

duty . . . was inarguably adverse to” firefighters who requested a

medical accommodation from complying with the FDNY’s

grooming policy), aff’d in part, rev’d in part on other grounds, 999

F.3d 157 (2d Cir. 2021).

Because placement on light duty constitutes an adverse employ-

ment action, Plaintiff has established his prima facie case. The

burden shifts to Defendants to show that accommodating Plain-

tiff presents an undue hardship on the FDNY.

b. Undue Hardship

In light of the Second Circuit’s decision in Bey v. City of New York,

999 F.3d 157 (2d Cir. 2021), Defendants easily satisfy their bur-

den. In Bey, the plaintiff firefighters, subject to the same clean-

shave grooming policy, brought a failure-to-accommodate claim

under the ADA. See 999 F.3d at 164-65. The court found that

OSHA’s Respiratory Protection Standard “clearly requires fire-

fighters to be clean shaven where a[] [respirator] seals against

their face.” Id. at 166. And this regulation is binding on the FDNY.

See N.Y. Labor Law § 27-a(4)(a). Thus, the FDNY “cannot be held

liable for failing to offer an accommodation that is expressly pro-

hibited by binding federal law.” See id. at 168 (“An

accommodation is not reasonable within the meaning of the ADA

if it is specifically prohibited by a binding safety regulation prom-

ulgated by a federal agency.”).

The Second Circuit’s holding in the ADA accommodation context

applies with equal (if not greater) force here. See id. at 170 (“Just

as in the ADA context, we conclude that Title VII cannot be used

to require employers to depart from binding federal regula-

tions.”); Kalsi v. New York City Transit Auth., 62 F. Supp. 2d 745,

757 (E.D.N.Y. 1998) (“[I]n stark contrast to the ADA’s reasonable

accommodation requirement, which has been interpreted

broadly, the obligation under Title VII is very slight.”). As ex-

plained in Bey, “OSHA’s regulations are binding on the FDNY and

prohibit the accommodation that [Plaintiff] seek[s]. That ends

the matter.” See 999 F.3d at 169. Accordingly, Defendants are

entitled to summary judgment on the failure-to-accommodate

claim.7

2. Disparate Treatment

To establish a prima facie case of religious discrimination based

on disparate treatment, a plaintiff must show that: “(1) he is a

member of a protected class; (2) he was qualified for the position

he held; (3) he suffered an adverse employment action; and (4)

the adverse action took place under circumstances giving rise to

the inference of discrimination.” Ruiz, 609 F.3d at 492. If the

plaintiff succeeds in making out a prima facie case, a presump-

tion of discrimination arises and the burden shifts to the

defendant to articulate a legitimate, nondiscriminatory reason

7 Plaintiff also argues that Defendants failed to consider any alternative

respirators to accommodate Plaintiff. (Pl.’s Opp. at 13, 15-16.) To support

that argument, Plaintiff cites specific alternatives that his expert identified.

(See id.) But as Defendants note correctly, all of those alternative respira-

tors violate other OSHA regulations. (See Defs.’ Reply at 5.) Plaintiff fails

to identify any alternative respirator that complies with binding OSHA reg-

ulations, which the FDNY could then use. Therefore, there is no basis to

consider whether providing a hypothetical alternative respirator would

cause an independent undue hardship on the FDNY.

for the adverse employment action. See Holcomb, 521 F.3d at

138. If the defendant proffers such a reason, the plaintiff “has the

opportunity to prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its true rea-

sons, but were a pretext for discrimination.” Back v. Hastings on

Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004).

“A plaintiff may prove discrimination indirectly either . . . [by es-

tablishing the prima facie case] and showing that the employer’s

stated reason for its employment action was pretext to cover-up

discrimination, or by otherwise creating a mosaic of intentional

discrimination by identifying bits and pieces of evidence that to-

gether give rise to an inference of discrimination.” Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015);

see also Back, 365 F.3d at 124 (“[T]he plaintiff may, depending

on how strong it is, rely upon the same evidence that comprised

her prima facie case, without more.”). “If a plaintiff relies on ev-

idence that he was treated less favorably than employees outside

of his protected group to raise an inference of discriminatory in-

tent, he must establish that he was ‘similarly situated in all

material respects’ to those employees.” Smith v. City of New York,

385 F. Supp. 3d 323, 338 (S.D.N.Y. 2019) (quoting Mandell v.

Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)).

Plaintiff satisfies the first three elements of his prima facie case.

He is member of a protected class (he practices Judaism); he is

qualified to be a firefighter (he served as a full-duty firefighter

for almost five years); and he suffered an adverse employment

action (the FDNY placed him on light duty). Assuming Plaintiff

has satisfied the fourth element of his prima facie case, see Payne

v. New York City Police Dep’t, 863 F. Supp. 2d 169, 179-80

(E.D.N.Y. 2012) (“The plaintiff's burden to support his prima fa-

cie case of discrimination is de minimis.”), Defendants have

provided a legitimate, nondiscriminatory reason for transferring

Plaintiff to light duty: OSHA’s Respiratory Protection Standard

prohibits Plaintiff’s desired accommodation, and the FDNY must

follow that regulation, see Bey, 199 F.3d at 166-69. (See Defs.’ ¶¶

50-52.) Thus, the burden shifts back to Plaintiff to show pretext

or discriminatory intent by a preponderance of evidence. Plaintiff

has shown neither.

Plaintiff offers no evidence to suggest that the FDNY’s rationale

for revoking its accommodation program was pretextual. He in-

stead attempts to show discriminatory intent with the deposition

testimony of Valerie Loubriel, an FDNY disability rights coordi-

nator who “testified that Plaintiff was placed on light duty

because of his religious practices.” (Pl.’s Opp. at 8 (emphasis in

original).) But Plaintiff’s argument, apart from mischaracterizing

Ms. Loubriel’s testimony, proves too much. (See Deposition of Va-

lerie Loubriel (“Loubriel Dep.”) (Dkt. 56-9) at 56 (“[Ms.

Loubriel:] It’s because he cannot shave due to religious reasons,

and so he cannot be in the firehouse. [Question:] So because he

requested the ability to maintain hair due to his religious obser-

vances, he was placed on light duty? [Ms. Loubriel:] Correct.”).)

Plaintiff was placed on light duty because he could not comply

with the FDNY’s grooming policy; he could not comply with the

grooming policy because of his facial hair.

Plaintiff conflates religion and facial hair. The FDNY’s grooming

policy applies to all firefighters without exception, including fire-

fighters with prior medical accommodations. (See id. at 56-57

(testifying that the grooming policy applies to firefighters who

cannot shave due to a medical condition).) Facial hair—not reli-

gion—is the determinative characteristic.

Plaintiff also argues that “[i]t is clear that the Defendants tar-

geted Plaintiff because of his religious belief,” because

Defendants acknowledged the fact that the reinforced clean-

shave policy would impact firefighters with religious and medical

accommodations. (See Pl.’s Opp. at 8-9.) Here, Plaintiff cites dep-

osition testimony from Ms. Loubriel and Commissioner Nigro.

(Id.) Again, however, Plaintiff mischaracterizes their testimony

and ignores the context in which they made it. Indeed, Plaintiff

cites testimony from Commissioner Nigro that refers only to the

firefighters who lost their medical accommodation. (See id. at 9

(citing Nigro Dep. at 38-40).) Plaintiff’s selective interpretation

of this testimony is insufficient to show an inference of inten-

tional discrimination. See Bey, 437 F. Supp. 3d at 237

Finally, Plaintiff attempts to show discriminatory intent on the

grounds that he was treated less favorably than nonreligious

Caucasian firefighters. (Pl.’s Opp. at 9-10.) Plaintiff alleges these

firefighters were and are permitted to serve as full-duty firefight-

ers and maintain facial hair. (Id.; Pl.’s Mot. at 20-21.) But

“Plaintiff offers no evidence—whatsoever—to suggest that the

white employees to whom he refers were similarly situated to

him in any material respect.” See Smith, 385 F. Supp. 3d at 339

(“Having failed to offer even a scintilla of pertinent evidence,

Plaintiff’s references to white comparators are insufficient to raise

an inference of discriminatory intent.”); see also Bey, 437 F. Supp.

3d at 237 (“By focusing solely on white individuals employed by

the FDNY as full-duty firefighters who were allegedly permitted

to maintain facial hair, Plaintiffs mistakenly leap to the conclu-

sion that they were subjected to disparate treatment.”). Rather,

Plaintiff’s argument relies on a series of conclusory assertions,

which assume these unidentified firefighters are similarly situ-

ated to him. (Pl.’s Opp. at 9-10; Pl.’s Mot. at 20-21.) “Even in the

discrimination context, however, a plaintiff must provide more

than conclusory allegations to resist a motion for summary judg-

ment.” See Holcomb, 521 F.3d at 137. Without more, Plaintiff

cannot carry his burden to show discriminatory intent by a pre-

ponderance of evidence here.8

8 Plaintiff also relies on several unauthenticated photographs of unknown

firefighters, in an unknown place, on an unknown date to infer disparate

Plaintiff has failed to raise a genuine question of fact as to

whether the legitimate reason offered by Defendants for placing

him on light duty was a pretext for discrimination. He has also

failed to show that he was treated different under the grooming

policy than any similarly situated firefighters. Accordingly, De-

fendants are entitled to summary judgment on all disparate

treatment claims.

3. Disparate Impact

To establish a prima facie case of religious discrimination based

on disparate impact, a plaintiff must “(1) identify a specific em-

ployment practice or policy; (2) demonstrate that a disparity

exists; and (3) establish a causal relationship between the

two.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 151 (2d Cir.

2012). “If that prima facie showing is made, the defendant can

defend the challenged policy as job related for the position in

question and consistent with business necessity.” Bey, 999 F.3d

at 170. “Should the defendant succeed in demonstrating the busi-

ness necessity of the challenged policy, the burden then shifts

back to the plaintiff, who . . . must show that other methods exist

to further the defendant’s legitimate business interest without a

similarly undesirable racial effect.” Mandala v. NTT Data, Inc.,

975 F.3d 202, 208 (2d Cir. 2020).

Bey forecloses Plaintiff’s disparate impact claim. Assuming Plain-

tiff satisfies his prima facie case, Defendants conclusively rebut

that case because complying with OSHA’s Respiratory Protection

treatment. (See Pl.’s Mot. at 20-21.) These photographs are inadmissible

and need not be considered. See Porter v. Quarantillo, 722 F.3d 94, 97 (2d

Cir. 2013). Even so, these photographs fail to show that he is similarly sit-

uated in all material respects to the pictured firefighters. Plaintiff does not

provide who these firefighters are or when these photographs were taken.

It is not enough for Plaintiff to say he is similarly situated to these unknown

firefighters; it is his burden to provide evidence to establish they are simi-

larly situated to him in all material respects.

Standard is a business necessity. See Bey, 999 F.3d at 170-71

(“[R]egardless of whether the FDNY has consistently enforced

the respiratory-protection standard, complying with that legally

binding federal regulation is, by definition, a business necessity

and presents a complete defense to [Plaintiff’s] disparate impact

claim.”). Moreover, “no less restrictive alternative exists” because

“the FDNY is required to comply with the regulation as written.”

See id. at 170 n.9 (citing Mandala, 975 F.3d at 208). “Title VII

cannot be used to require employers to depart from binding fed-

eral regulations.” See id. at 170. Thus, Defendants are entitled to

summary judgment on the disparate impact claim.

* * *

For the reasons stated above, Defendants are entitled to sum-

mary judgment on all religious discrimination and equal

protection claims under Title VII and the NYSHRL and pursuant

to Sections 1981 and 1983.9

B. Religious Discrimination Claims under the NYCHRL

Although Title VII’s analytical framework is applicable to the NY-

CHRL, see Payne v. New York City Police Dep’t, 863 F. Supp. 2d

169, 179 n.5 (E.D.N.Y. 2012) (citing Salamon v. Our Lady of Vic-

tory Hosp., 514 F.3d 217, 226 n. 9 (2d Cir. 2008)), “courts must

analyze NYCHRL claims separately and independently from any

federal and state law claims,” Mihalik v. Credit Agricole Cheuvreux

N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). “The NYCHRL is

reviewed more liberally than federal or state discrimination

9 Plaintiff notes that Defendants failed to request relief as to the alleged

equal protection claim; thus, Plaintiff argues, that claim must survive. (See

Pl.’s Opp. at 17 n.1.) But Defendants incorporate the Equal Protection

Clause in their broader analysis arguing for summary judgment of the re-

ligious discrimination claims. (See Defs.’ Mot. at 2) (addressing

“discrimination under Title VII, the Equal Protection Clause, NYSHRL and

NYCHRL”).) Because claims under Title VII and the Equal Protection

Clause are analyzed together, Defendants’ grouped approach suffices.

claims.” Parsons v. JPMorgan Chase Bank, N.A., No. 16-cv-0408

(NGG) (JO), 2018 WL 4861379, at *11 (E.D.N.Y. Sept. 30,

2018). But “the NYCHRL is not a general civility code.” Mihalik,

715 F.3d at 110. The plaintiff still bears the burden of showing

discrimination. See id.

Plaintiff brings the same discrimination and equal protection

claims against Defendants under the NYCHRL as he has brought

under Title VII and the NYSHRL. Even applying the NYCHRL’s

more liberal standard, Defendants are entitled to summary judg-

ment on the NYCHRL claims for substantially the same reasons

as above.

1. Failure to Accommodate

The NYCHRL requires that an employer provide a reasonable ac-

commodation for the religious needs of an employee affected by

a condition of employment. N.Y.C. Admin. Code § 8-107(3)(a).

Reasonable accommodation means an accommodation to an em-

ployee’s religious observance that does not cause the employer

“undue hardship.” Id. § 8-107(3)(b). The NYCHRL defines undue

hardship as “an accommodation requiring significant expense or

difficulty.” Id.; cf. Baker, 445 F.3d at 546 (“An accommoda-

tion . . . cause[s] undue hardship [under Title VII] whenever it

results in more than a de minimis cost to the employer.”).

Plaintiff’s failure-to-accommodate claim under the NYCHRL fails

for the same reasons as those explained above. Defendants satisfy

their burden because OSHA’s regulation is binding on the FDNY

and prohibits the accommodation that Plaintiff seeks. See Bey,

999 F.3d at 168.

2. Disparate Treatment and Disparate Impact

To prevail on a disparate treatment claim under the NYCHRL, a

plaintiff “need only show differential treatment—that she is

treated less well—because of a discriminatory intent.” Mihalik,

715 F.3d at 110; see also Zambrano-Lamhaouhi v. N.Y.C. Bd. of

Educ., 866 F. Supp. 2d 147, 160 (E.D.N.Y. 2011). But this lower

standard does not cure Plaintiff’s failure to identify a similarly

situated comparator. See Greenbaum v. New York City Transit

Auth., No. 20-cv-771 (DLC), 2021 WL 2650509, at *7-9

(S.D.N.Y. June 25, 2021) (“Having failed to identify an adequate

comparator, [plaintiff’s] disparate treatment claim under the NY-

CHRL fails.”). He has not shown that religious discrimination

played any role in Defendants’ treatment of him. And he has not

put forth evidence from which a reasonable jury could conclude

that he was treated less well because of his religion. See Lugo v.

City of New York, 518 Fed. App’x. 28, 30 (2d Cir. 2013) (un-

published) (“While the NYCHRL is indeed reviewed

independently from and more liberally than federal or state dis-

crimination claims, it still requires a showing of some evidence

from which discrimination can be inferred.”).

Plaintiff’s disparate impact claim under the NYCHRL also fails for

the same reasons explained above: “[C]omplying with [a] legally

binding federal regulation is, by definition, a business necessity

and presents a complete defense to [Plaintiff’s] disparate impact

claim.” See Bey, 999 F.3d at 171. In short, the NYCHRL, like Title

VII, “cannot be used to require employers to depart from binding

federal regulations.” See id. at 170. Accordingly, Defendants are

entitled to summary judgment on the NYCHRL claims.10

C. First Amendment Claims under Section 1983

Plaintiff alleges individual and municipal liability claims for a

deprivation of his right to free exercise pursuant to 42 U.S.C.

§ 1983. (Second Am. Compl. ¶¶ 118-136.) “Section 1983 ‘is not

itself a source of substantive rights, but a method for vindicating

10 Plaintiff also alleges individual aider and abettor claims under the

NYSHRL and NYCHRL. (See Second Am. Compl. ¶¶ 171-86.) Because De-

fendants are entitled to summary judgment on all claims under the

NYSHRL and NYCHRL, however, Defendants are also entitled to summary

judgment on these individualized allegations premised on those claims.

federal rights elsewhere conferred by those parts of the United

States Constitution and federal statutes that it describes.’”

Conklin v. Cnty. of Suffolk, 859 F. Supp. 2d 415, 438 (E.D.N.Y.

2012) (quoting Baker v. McCollan, 443 U.S 137, 144 n.3 (1979)).

A plaintiff must satisfy two essential elements: “The conduct at

issue must have been committed by a person acting under

color of state law and must have deprived a person of rights,

privileges, or immunities secured by the Constitution or laws

of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d

Cir. 2010). There is no dispute here that Defendants were act-

ing under the color of state law. Because Defendants have not

violated the Free Exercise Clause, however, Plaintiff’s claims

fail.

Under the Free Exercise Clause of the First Amendment, which

applies to the states through the Fourteenth Amendment,

“[g]overnment enforcement of laws or policies that substantially

burden the exercise of sincerely held religious beliefs is subject to

strict scrutiny.” Fifth Ave. Presbyterian Church v. City of New York,

293 F.3d 570, 574 (2d Cir. 2002). “Where the government seeks

to enforce a law that is neutral and of general applicability, how-

ever, then it need only demonstrate a rational basis for its

enforcement, even if enforcement of the law incidentally burdens

religious practices.” Id. (citing Emp. Div., Dep’t of Human Res. of

Or. v. Smith, 494 U.S. 872, 879 (1990)). The Free Exercise

Clause “does not relieve an individual of the obligation to comply

with a valid and neutral law of general applicability on the

ground that the law proscribes (or prescribes) conduct that his

religion prescribes (or proscribes).” Smith, 494 U.S. at 879.

The FDNY’s clean-shave grooming policy is facially neutral and

applies to all full-duty firefighters without exception. Thus, the

grooming policy is subject to rational basis review. Cf. Litzman v.

New York City Police Dep’t, No. 12-cv-4681 (HB), 2013 WL

6049066, at *2-3 (S.D.N.Y. Nov. 15, 2013) (applying strict scru-

tiny to the NYPD’s no-beard policy because the Department made

frequent exemptions for secular reasons but made no exemption

for religious reasons). The FDNY enforces its grooming policy to

comply with a binding federal regulation. (Defs.’ 56.1 ¶¶ 48-50.)

This reason satisfies rational basis review. See Smith, 494 U.S. at

879, 882; see also Ungar v. New York City Hous. Auth., 363 F.

App’x 53, 56 (2d Cir. 2010) (unpublished). Accordingly, Defend-

ants are entitled to summary judgment on all claims premised on

an alleged violation of the Free Exercise Clause.

CONCLUSION

For the reasons stated above, Defendants’ Motion for Summary

Judgment is GRANTED with prejudice, and Plaintiff’s Motion for

Summary Judgment is DENIED. The Clerk of Court is respectfully

directed to enter judgment for Defendants and close the case.

SO ORDERED.

Dated: Brooklyn, New York

September 28, 2021

_/s/ Nicholas G. Garaufis_

NICHOLAS G. GARAUFIS

United States District Judge