Sughrim v. New York

690 F.Supp.3d 355

Brian SUGHRIM, David Feliciano, Roland Sofo, Derek Gleixner,and Khaldoun Alshamiri, individually and on behalf of all others similarly situated, Plaintiffs, v. State of NEW YORK, New York State Department of Correctionsand Community Supervision, Anthony J. Annucci, John A. Shipley,Na-Kia Walton, Stephen Urbanski, Alan Washer,William Lee, Michael Bertone, and Thomas Napoli, Defendants.

19-cv-7977 (RA) (SDA)

United States District Court, S.D. New York

Signed September 5, 2023

Joshua Samuel Moskovitz, Calla Ketchens, Adam Ivan Strychaluk, Hamilton Clarke, LLP, New York, NY, Deema Azizi, Jeffrey F. Kinkle, Jonathan C. Moore, Luna Droubi, Beldock Levine & Hoffman LLP, New York, NY, Ronald E. Cook, Houston, TX, for Plaintiffs.

William Lunsford, Kenneth Steely, Matthew Reeves, Melissa Kay Marler, Butler Snow LLP, Huntsville, AL, John Michael Hintz, Maynard Nexsen PC, New York, NY, for Defendants State of New York, New York State Department of Corrections and Community Supervision, Anthony J. Annucci, John A. Shipley, Na-Kia Walton, Stephen Urbanski, Alan Washer, William Lee, Michael Bertone, Thomas Napoli.

William Lunsford, Matthew Reeves, Melissa Kay Marler, Butler Snow LLP, Huntsville, AL, John Michael Hintz, Maynard Nexsen PC, New York, NY, for Defendants LeRoy Fields, James Johnson.

Lawrence Henry Schaefer, Lippes Mathias LLP, Albany, NY, for Amicus New York State Correctional Officers and Police Benevolent Association, Inc.

OPINION & ORDER

RONNIE ABRAMS, United States District Judge:

This case involves a challenge by New York State correction officers who claim that the State's prison system and its officials have violated, and continue to violate, their constitutional and statutory rights by denying their requests to wear beards as an expression of their religious beliefs. Plaintiffs David Feliciano, Roland Sofo, Derek Gleixner, and Khaldoun Alshamiri (the "Individual Plaintiffs")¹ have sued the State of New York, the New York State Department of Corrections and Community Supervision ("DOCCS"), and eight individual defendants—Anthony J. Annucci, the Acting Commissioner of DOCCS; John A. Shipley, the Director of Labor Relations of DOCCS; Na-Kia Walton, the Assistant Director of Labor Relations; Stephen Urbanski, the Deputy Superintendent for Security Services at Fishkill ("Fishkill"); Alan Washer, a Corrections Captain at Fishkill; William Lee, the Superintendent of Eastern Correctional Facility ("Eastern"); Michael Bertone, Deputy Superintendent of Security at Eastern; and Thomas Napoli, Deputy Superintendent and Designee for Reasonable Accommodation at Cayuga Correctional Facility ("Cayuga").

Each of the Individual Plaintiffs asserts that he observes a religious faith—Feliciano, Gleixner and Alshamiri are Muslim, and Sofo is a believer in Asatru, a kind of Norse Paganism—that requires him to wear a beard.² Each requested the right to wear a beard at work, and each was denied that right, either for safety reasons, or because Defendants did not believe his religion required him to wear a beard as a tenet of his faith. Plaintiffs have moved for partial summary judgment, seeking permanent and preliminary injunctive relief as well as declaratory relief, and have moved to certify a class of correction officers. The primary question the Court confronts is whether, and in what circumstances, Defendants must grant them the right to wear beards in accordance with their religious faiths, while also maintaining their ability to carry out the demanding, and often dangerous, mission of operating New York State's prisons.

For the reasons that follow, Plaintiffs' motion for partial summary judgment is granted with respect to their claim that Defendants have an unconstitutional practice of denying requests for religious accommodations based on a determination that wearing a beard is not a tenet of a believer's faith. Gleixner, Alshamiri and Sofo's motions are granted on their Title VII claims, but Feliciano's motion is denied. Plaintiffs' motion for class certification pursuant to Rule 23(b)(2) is granted. Finally, the motion for preliminary injunctive relief is denied.

The Court notes at the outset that the relief it grants today is limited in nature. As a result of intervening circumstances at DOCCS, most of the class members who wish to wear beards are already able to do so, so the conditions at DOCCS's facilities should not be significantly altered by this Opinion. Nevertheless, the Court concludes that Plaintiffs' claims are not moot, and that equitable relief is warranted.

FACTUAL BACKGROUND³

The following facts, construed in the light most favorable to Defendants, are undisputed unless otherwise noted. See Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011).

I. DOCCS's Appearance Policies

DOCCS sets forth its appearance policy for "uniformed employees," which includes all correction officers, in an order titled Directive 3083. Pl. 56.1 ¶ 2. Among other requirements regarding personal grooming for security staff, Directive 3083 prohibits security staff appointed after January 25, 1990 from wearing beards or goatees. Id. ¶ 12; Pl. Ex. 116. For security staff appointed before January 25, 1990, beards or goatees are permitted "provided they are kept neatly trimmed within one inch." Pl. 56.1 ¶ 10. Officers are also permitted to wear mustaches and sideburns, provided they are neatly trimmed. Id. ¶ 11, Pl. Ex. 116. Employees that are required to wear a respirator during the course of their employment, however, are prohibited from wearing "facial hair which would prevent a proper seal between face and mask (e.g., beard/goatee)[.]" Pl. Ex. 116 at 12. DOCCS's facial hair policy is further delineated in its "Respiratory Protection Program" policy, or Directive 4068, which prohibits any employee who is required to wear a tight-fitting respirator from wearing facial hair that "comes between the sealing surface of the face piece and the face or that interferes with respirator valve function." Pl. 56.1 ¶ 46.

DOCCS designates certain post assignments as "clean shaven" posts where it is possible that security staff will need to use a respirator. Id. ¶ 51. A DOCCS policy memo issued on November 26, 1996 states "that when a respirator is worn, the employee must be clean shaven. Certain posts and assignments will require that security staff be clean shaven at all times." Id. ¶¶ 52, 53. The number of "clean shaven" posts at the three facilities where Plaintiffs worked was, as of August 1, 2019, a minority of the total number of posts, ranging from 68 clean shaven posts out of 434 total posts at Fishkill to 45 out of 187 total posts at Eastern. Id. ¶ 63. The percentage of officers who were fit-tested for respirator use was 41% at Fishkill, 45% at Eastern, and 69% at Cayuga. Id. ¶ 56. Plaintiffs assert, and Defendants dispute, that DOCCS does not consistently enforce its no-beard rule, including at clean shaven posts. Id. ¶ 59. For example, Edward Burnett, the Superintendent of Fishkill, circulated a memo dated April 1, 2021, stating that "it has been discovered that Officers have been routinely assigned to posts that they are not qualified to work, particularly posts that required the Officer to be clean shaven (tower, transportation, etc.)[.]" Pl. Ex. 124. Two of the Individual Plaintiffs, Alshamiri and Gleixner, asserted that they had been assigned to clean shaven posts when they had beards, though Defendants dispute that occurred. Pl. Ex. 107 at 95:7-96:14; Pl. Ex. 4 ¶ 7.

DOCCS has articulated several explanations for its facial hair policy in Directive 3083, including (1) the safety of officers in the event of a struggle where a combatant could grab a beard of excessive length; (2) ensuring that officers can properly wear masks in the event a chemical agent is used; and (3) preventing officers from carrying drugs or weapons into a facility that could be hidden in a beard. Pl. 56.1 ¶ 19; Pl. Ex. 108 at 97:11-98:13. In addition, Commissioner Annucci testified that DOCCS's grooming standards are important for the "esprit de corps." Pl. Ex. 108 at 97:8. Defendants' expert, William Bechtold, warden for the Franklin County Jail in Chambersburg, Pennsylvania, declared that "[e]ven a small amount of [facial hair] growth can significantly decrease the effectiveness of the seal on the mask" and subject "the officer to potentially dangerous chemicals and increases the probability of the officer succumbing to chemical agents or smoke." Dkt. 286, Bechtold Decl. ¶ 9. Bechtold also stated that "beards longer than one (1) inch can and do cause safety and security problems" because "[d]uring an altercation, an inmate can grab a longer beard, thereby gaining control of the correctional officer's head movements." Id. ¶ 11.

II. Beard Accommodation Policy

Directive 3083 states that uniformed employees may request a reasonable accommodation "based on their sincerely held religious beliefs" from DOCCS's grooming and appearance requirements. Pl. Ex. 116 § 10. On October 10, 2019, DOCCS issued Directive 2609, which states that where a religious accommodation is not resolved "informally" between the employee and their supervisor, written requests for accommodation must be made to DOCCS's Office of Diversity and Inclusion ("ODI") on one of several standardized forms. Pl. Ex. 119 § 4. Directive 2609 states that "[a]ccommodation of sincerely held practices of the individual's religion, or wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion, must be granted unless the accommodation would create a specific concern, such as a safety concern or an undue hardship." Id. It defines "undue hardship" to mean "an accommodation requiring significant expense or difficulty," including "significant interference with the safe or efficient operation of the work place[.]" Id. § 3. Directive 2609 sets forth several factors to consider in weighing undue hardship, including the "identifiable cost of the...