Potter v. District of Columbia

558 F.3d 542, 385 U.S. App. D.C. 26, 22 OSHC (BNA) 1510, 2009 U.S. App. LEXIS 4540, 92 Empl. Prac. Dec. (CCH) 43,486, 105 Fair Empl. Prac. Cas. (BNA) 1249, 2009 WL 564630
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 6, 2009
Docket07-7163, 07-7164
StatusPublished
Cited by139 cases

This text of 558 F.3d 542 (Potter v. District of Columbia) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Potter v. District of Columbia, 558 F.3d 542, 385 U.S. App. D.C. 26, 22 OSHC (BNA) 1510, 2009 U.S. App. LEXIS 4540, 92 Empl. Prac. Dec. (CCH) 43,486, 105 Fair Empl. Prac. Cas. (BNA) 1249, 2009 WL 564630 (D.C. Cir. 2009).

Opinions

[544]*544Opinion for the Court by Circuit Judge ROGERS. .

Concurring opinion by Senior Judge WILLIAMS.

ROGERS, Circuit Judge:

The District of Columbia requires its firefighters and emergency medical service (“EMS”) workers (together “firefighters”) to be clean shaven. A number of firefighters who wear beards for religious reasons challenged this requirement under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”). The district court granted summary judgment to the firefighters upon finding that the District of Columbia had not shown a material issue as to whether the requirement was narrowly tailored. Specifically, the district court found the District of Columbia had conceded the safety for bearded firefighters of one form of respirator (known as a “SCBA”). We agree the District of Columbia failed to satisfy its burden in opposing summary judgment by setting forth specific evidence showing a triable issue of fact as to the safety of the SCBA, and we affirm.

I.

Because this case centers on the efficacy of certain safety equipment for bearded firefighters, it is helpful first to describe the environments in which firefighters work and the protective equipment they use. We then turn to the district court proceedings, focusing particularly on the District of Columbia’s position regarding the safety of the self-contained breathing respirator. Upon setting forth our standard of review, RFRA requirements, and the non-moving party’s burden in opposing summary judgment, we review the record to determine whether the District of Columbia raised a material issue of disputed fact about the safety of SCBAs for bearded firefighters.

A.

Firefighters encounter dangerous atmospheres. The most dangerous areas, classified as “immediately dangerous to life and health,” include all active fires, other oxygen-deprived environments, and settings in which highly toxic contaminants may’ be inhaled. Other areas pose a lesser threat, and still other areas pose no threat at all. When firefighters do not know the threat posed by an environment, they must treat it as immediately dangerous to life and health.

Firefighters can protect themselves by using a number of forms of respiratory equipment, all of which use the same tight-fitting face mask. The most powerful, a self-contained breathing apparatus, or SCBA, consists of an air tank, a regulator, and a mask. A SCBA is designed to maintain “positive pressure” in the face mask— that is, the atmospheric pressure is greater inside the mask than outside. Testimony from both parties indicates that, as a result, a leak in the seal of the face mask will cause clean air to leak out of the mask into the outside atmosphere, rather than allowing contaminated outside air to leak in. The District of Columbia’s “respiratory protection plan” requires firefighters to use SCBAs in environments that are actually or potentially immediately dangerous to life and health, although EMS workers are not trained at all in the use of SCBAs.

Although this appeal focuses on the safety of SCBAs for bearded firefighters, much of the district court proceeding concerned the safety of two other systems: An air-purifying filter, or APR, consists of a mask and a filter through which the user breathes. An APR relies on the negative pressure created by inhalation to draw outside air through the filter. A powered air-purifying filer, or PAPR, operates like an APR, but uses a battery-powered fan to force air through its filter. It is thus [545]*545designed to create positive pressure inside the mask.

B.

In 2001, the D.C. Department of Fire and Emergency Medical Services implemented a “grooming policy” that prohibited beards. A number of firefighters challenged the policy under RFRA, and the district court preliminarily enjoined enforcement of the policy. The Department accommodated the plaintiffs for a time but in 2005 issued a separate “safety policy,” which forbade Department employees who use “tight-fitting facepieces” to have “facial hair that comes between the sealing surface of the facepiece and face.” The firefighters sought various forms of relief including a permanent injunction and clarification as to whether the 2001 injunction on the grooming policy also applied to the new safety clean-shaven policy. The District of Columbia moved for a judgment as a matter of law declaring the new policy not in violation of RFRA.

On August 11, 2005, based on extensive briefing and a daylong hearing, the district court modified the 2001 injunction to allow the Department to assign to administrative duty employees who could not pass “face-fit tests,” and also to require the Department to afford the firefighters a reasonable opportunity to demonstrate they could pass the tests. Potter v. District of Columbia, 382 F.Supp.2d 35 (D.D.C.2005). In its opinion, the district court stated:

It is undisputed that firefighters who wear beards can safely operate the positive pressure self contained breathing apparatus (SCBA) that firefighters use in situations considered to be immediately dangerous to life and health [in part because] any break in the seal between a firefighter’s face and his SCBA mask will cause air from the tank to blow out, due to positive pressure, preventing air from the surrounding environment from entering the mask. The disagreement in this case concerns the safe operation of negative pressure masks by firefighters.

Id. at 39 (emphasis added). A month later, a group of EMS workers sued to establish that the modified injunction applied to them, and the district court consolidated the cases. Considerable wrangling followed, as some plaintiffs passed the fit tests, some failed subsequent tests, and both parties moved for summary judgment — the District of Columbia on July 7, 2006, with the firefighters responding on October 13, 2006 and cross-moving for summary judgment on October 16, 2006.

The district court granted summary judgment to the firefighters. Potter v. District of Columbia, Nos. 01-1189, 05-1792, Mem. Op. at 2, 2007 WL 2892685 (D.D.C. Sept. 28, 2007) (“2007 Mem. Op.”). As in the 2005 opinion, the district court reasoned that because “the Department now apparently concedes that the positive pressure in the SCBA system is adequate to protect the bearded firefighter from any leakage that may be caused by facial hair,” the case turned on whether bearded firefighters could safely wear APRs, and whether they need to do be able to do so. Id. at 13. The District of Columbia had argued that its clean-shaven policy was necessary because firefighters must be able to safely use APRs so that they could work for long periods in an environment, such as the aftermath of a terrorist attack, which is not imminently dangerous to life and health but still poses a threat. Mem. in Opp’n to Pis’ Mot. for Summ. J. 10-11. The district court concluded that the clean-shaven policy was not sufficiently narrowly tailored, as required under RFRA, because in such an environment the Department could redeploy bearded firefighters out of the zone in which APRs would be required, either “up” into areas in which SCBA systems were required, or “down” into areas in which no protection was needed. 2007 [546]*546Mem. Op. at 23. The district court denied the District of Columbia’s motion for reconsideration, and the District of Columbia appeals.

II.

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558 F.3d 542, 385 U.S. App. D.C. 26, 22 OSHC (BNA) 1510, 2009 U.S. App. LEXIS 4540, 92 Empl. Prac. Dec. (CCH) 43,486, 105 Fair Empl. Prac. Cas. (BNA) 1249, 2009 WL 564630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potter-v-district-of-columbia-cadc-2009.