Bearded Fireman Case Heads to D.C. Circuit

     WASHINGTON (CN) – A D.C. firefighter can appeal whether he faced disability discrimination in trying to avoid beard-shaving irritations, a federal judge ruled.
     Like many such outfits around the country, the D.C. Fire and Emergency Services Department (FEMS) has banned personnel who actively fight fires from donning a beard because the respirator apparatus firefighters use to breathe while working in smoky conditions must fit tightly against the skin.
     Manu Kennedy requested an exemption in 2008 after he was diagnosed with pseudofolliculitis barbae, a skin condition that results in irritation and infection from shaving.
     A dermatologist advised Kennedy to keep his facial hair at one-eighth of an inch, but the department would not grant Kennedy the same exemption it gives firemen who grow beards for religious reasons.
     After 11 years at the department, Kennedy resigned in 2013. He filed suit that year against the city, both the head of the FEMS and the agency itself, and former Mayor Vincent Gray.
     In March, U.S. District Judge Christopher Cooper found that Kennedy’s skin condition “does not constitute a disability under the prevailing … interpretation” of the Americans with Disabilities Act.”
     Cooper said Kennedy’s discrimination claims were subject to the more narrow definition of disability in place before amendments to the Americans with Disabilities Act took effect in January 2009.
     Kennedy moved to alter this judgment in April and to file an interim appeal with the D.C. Circuit before the trial court resolved his remaining claims.
     On Monday, Cooper granted Kennedy’s request to appeal so that the D.C. Circuit can clarify whether a claim filed under the original Americans with Disabilities Act but updated after the amended version took effect is subject to the narrow or expanded definition of disability.
     An appeal after the parties in the case litigated the remaining counts would require reopening discovery – subjecting them to “avoidable costs and delays,” Cooper ruled.
     Ascertaining the applicability of the amended Americans with Disabilities Act is also an issue of first impression and likely to generate debate among judges about the correct interpretation of the statute, the court found.
     Indeed, Kennedy has informed the court that Cooper’s ruling conflicts with the findings of a federal judge, and the former firefighter supplied a guidance document that seems to suggest the newer definition of disability should apply to claims filed before but updated after the amended Americans with Disabilities Act took effect.
     “The Guidance Document therefore furnishes an additional basis for disagreement with the Court’s Memorandum Opinion,” Cooper wrote. “The EEOC evidently adhered to that document in its Determination of June 15, 2012, which found that Kennedy’s case satisfied ‘all requirements for coverage’ under the ADA.”
     Kennedy’s claim for reconsideration fell flat, however, since Cooper found that ruling for Kennedy would have allowed him to get around time restrictions in the law.
     “As the court stated, its decision was based on the proposition that a plaintiff cannot circumvent time constraints – whether a statute of limitation or the effective date of new legislation – by requesting reconsideration of the denial of an earlier request,” Cooper wrote. “This principle would apply regardless of whether Kennedy had done so by amending his initial EEOC Charge or filing and entirely new charge based on the same events.”
     Cooper also rejected Kennedy’s reliance on an Equal Employment Opportunity Commission regulation that governs the retroactive application of new charges.
     Though Kennedy said the EEOC regulation puts the new definition of disability in play, Cooper said a motion for reconsideration was “emphatically” the wrong place to raise a new legal argument.
     Gary Gilbert, a Washington-area attorney who represents Kennedy, did not respond to a voicemail seeking comment on the ruling.

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