UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MANU KENNEDY , Plaintiff ,

v. HON. VINCENT GRAY , et al. , Defendant s . Case No. 13

- cv - 01384 ( CRC )

MEMORANDUM OPINION Plaintiff Manu Kennedy, a f ormer District of Columbia fire fighter, refused to comply with a policy requiring firefighters to be clean

- shaven so that they can safely wear their respirator s . Kennedy has pseudofolliculitis barbae (“PFB”), a skin condition that disproportionately affects African

- American men and can lead to irritation and infection when shaving one’s face closely

. His dermatologist recommended he maintain a one

- eighth inch beard to prevent irritation , but the fire department did not consider PFB a disability and refus ed to accommodat e it

. Instead, the d epartment assigned Kennedy to conduct fire inspections until he ultimately resigned in May 2013. Kennedy initially allege d 28 counts of disability d iscrimination, racial discrimination, failure to accommodate, medical privacy violations, and retaliation as a result of the fire department ’s application of the grooming policy to him , but has since agree d to withdr a w s everal c ounts

. Defendants, the District of Columbia and several of its offices and officials, move to dismiss se veral parties to the suit, the counts relat ed to Kennedy’s disability discrimination and failure to accommodate claims , and his request for declaratory and injunctive relief. The District does not seek dismiss al of Kennedy’s re maining race discrimination , retaliation , or medical p rivacy claims. The counts that remain at issue hinge largely on whether Kennedy had a disability as defined by the Americans with Disabilities Act

. This determination in turn depends o n whether the Americanswith Disabilities Amendments Act, which went into effect on January 1, 2009, applies to Kennedy’s claims. Because the Court finds that the amendments do not apply here and that PFB does not constitute a disability under the prevailing pre

- amendment interpretation of the statute , the Court will grant the partial mo tion to dismiss

. I. Background 1
A. The Fire Department’s Shaving Policy In 2001, the District of Columbia Fire and Emergency Medical Services Department (“FEMS”) implemented a grooming policy prohibiting firefighters from having beards

. Compl. ¶
77. The purpose of the policy was to ensure that firefighters’ respirators fit properly. Id. ¶ 82. Imperfections in fit between a firefighter’s face and the mask of his or her respirator

— due to an unshaven face or other factors like scars

— can cause clean air to escape the mask rather than circulating inside it , leading to more rapid depletion of the firefighter’s air supply

. Id. ¶ ¶ 60, 61

– 63 , 65

. After several firefighters challenged the policy under the Religious Freedom Restoration Act (“RFRA”) , t his cour t preliminarily enjoined the d epartment from enforcing it against those who refused to comply on religious grounds. Id. ¶ 78. The c ourt ultimately granted summary judgment to the plaintiff s, conclud ing that “ th e fire department may not impose a shaving requirement on men who wear the ir beards for religious reasons

. ” Potter v. D istrict of Columbia , No. 01

- cv - 1189, 2007 WL 2892685, at *1 (D.D.C. Sept. 28, 2007) , aff’d , 558 F.3d 542 (D.C. Cir. 2009). F irefighters who are not claiming a religious exemption , however, still must comply with the grooming requirements

.

1 Because the Court “must take all of the factual allegations in the complaint as true,” this overview draws heavily from Kennedy’s complaint. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).

2B. Kennedy’s Employment with the Fire Department Kennedy worked for FEMS from 2002 through 2013

. Compl. ¶ 23. The relevant events in this case began in May 2008 , when Kennedy mentioned to a doctor at the fire department clinic that he had a spot on his face that would not heal due to PFB. Id. ¶ ¶ 106

– 08. PFB is a skin condition that causes persistent irritation on a person’s face when he shaves b ecause regrowing hair s curl into the skin instead of growing straight out of the follicle. Id. ¶ ¶ 39, 40

– 43 , 45 . According to the National Institutes of Health and other sources, PFB disproportionately affects African

- American

men. Id. ¶ ¶ 45

– 48. After his clinic appointment, Kennedy ’s personal d ermatologist inst ruct ed him to maintain one

- eighth of an inch of facial hair

. Id. ¶ ¶ 111 , 114

– 17

. Kennedy provided medical documentation o f his diagnosis and treatment to FEMS on July 2, 2008 , which prompted a clinic doctor to place him on limited duty. Id. ¶ 112. Kennedy then requested sick leave due to his PFB , which was denied. Id. ¶¶ 124

– 25. After he report ed for duty noncompliant with the shaving policy on July 10, 2008, FEMS required Kennedy to explain his inability to shave ; he indicated that he beli eved he was being discriminated against and asked FEMS to accommodate his PFB. Id. ¶¶ 128

-

– 3 1

. A b attalion c hief notified Kennedy of proposed penalties for non

- compliance and his decision
to plac e Kennedy on administrative leave during the last week of J uly 2008

. Id. ¶ ¶ 135

– 38

. In
response , Kennedy submitted a memorandum explaining his version of events , indicating that he believed the proposed discipline was discriminatory. Id. ¶¶ 136

– 37. After a clinic doctor told Kennedy’s dermatologist that he was still required to be clean shaven in order to wear a respirator safely, i d. ¶ ¶ 139

– 140 , Kennedy filed a charge with the Equal Employment Opportunity Commission (“EEOC”) o n or around July 31, 2008 alleging discrimination on the bases of race and disability , i d. ¶¶ 7

– 8.
In August 2008, FEMS officials suspended Kennedy for violating the facial hair policy , which he appealed

. Id. ¶¶ 141

– 46, 164. The same month, Kennedy passed a fit test while

3maintaining a beard. Id. ¶¶ 1 5 1

– 52. A fit test examines “ the seal between a firefighter’s face and the respirator mask” in order to “determine whether a firefighter can wear a mask without risk of air leakage

. ” Id. ¶¶ 83

– 85. Kennedy then missed work d ue to an other health issue from October 2008 until January or February 2009 , during which time his appeal of his suspensions was denied

. Id. ¶¶ 153

– 5 7, 163, 16 5

– 67. After Kennedy returned to the Fire Prevention Division on limited/light duty
status , FEMS informed him that he would be subject to the i nvoluntary r etirement process . Id. ¶¶
172

– 75 , 182. T he clinic recommended that he be considered for disability retirement in September 2009

. Id. ¶¶ 188, 191. Nine months later, after Kennedy r efus ed to undergo a psychological examination

— believing it was discriminatory and retaliatory

— FEMS terminated his limited duty
status. Id. ¶¶ 208, 213

– 21. In turn, Kennedy was deemed to be ineligible for disability retirement because he had returned to full du ty. Id. ¶ 239. From June 2010 until September 2010, Kennedy served on full duty status in the d epartment ’ s t raining a cademy

. Id. ¶ 32. FEMS later assigned him
to office duty in the Fire Prevention Division from September 2010 through February 2011 and on fire inspe ction duty from February 2011 until he resigned in May 2013

. Id. ¶ ¶ 33, 35

– 36, 284 , 286

– 87. Kennedy reaffirmed his request to maintain one

- eighth of an inch of facial hair and amended his EEOC complaint several times between July 2008 and July 2010 , add ing actions taken against
him for his refusal to comply with the shaving policy and the additional ground of retaliation. Id. ¶¶ 9

– 17. In August 2012, the EEOC issued a determination of the charge, finding reasonable cause to believe that discrimination occurred , and referred the matter to the Department of Justice for

4consideration. Id. ¶ 20. In June 2013 , Kennedy received a Notice of Right to Sue letter from the Department of Justice. Id. ¶ 21. He brought this suit on September 11, 2013.
II. Standard of Review
To overcome a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (20 09) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). Facial plausibility entails “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While the
court “mu st take all of the factual allegations in the complaint as true,” legal conclusions “couched as a factual allegation” do not warrant the same deference. Ashcroft , 556 U.S. at 678 (citing Twombly , 550 U.S. at 555).
III. Analysis 2
A. Dismissal of Certain Defendant s Defendants move to dismiss Mayor Gray, Chief Ellerbe, and Attorney General Nathan from the suit

. 3 As Defendants note , the c omplaint lacks allegations relating directly to their official condu ct . Def s .’ Partial Mot. to Dismiss at 10 (citing Simba v. Fenty , 754 F. Supp. 2d 19, 22 (D.D.C. 2010)). T hus , the claims against these officials have no independent purpose and are redundant to the claims against the District of Columbia

. Id. K ennedy responds that the Court is not required to dismiss individ uals in their official capacities when the city is also a party to the suit

. Pl.’s Opp’n to Defs.’ Partial Mot. to Dismiss at 3 (citing Ow e ns v. District of Columbia , 631 F.

2 Defendants move to dismiss Counts 2, 3, and 20 of Ke nnedy’s suit. Kennedy agrees to withdraw these claims “ for the reasons Defendant states ” and the Court will therefore dismiss them and Count 17 , which Defendants di sputed on the same basis

. Pl.’s Opp’n to Def s .’ Part. Mot. to Dismiss at 2

. 3 Plaintiff agrees to dismiss the D.C. Fire Department as non sui juris

. Pl.’s Opp’n to Defs.’ Partial Mot. to Dismiss at 1.

5Supp. 2d 48, 54 (D.D.C. 2009) (indicating that dismissal of individuals in their o fficial capacities is not required when the city is also party to the suit)) . Yet he fails to provide any persuasive reasons for the Court to exercise this discretion

. B ecause dismissing redundant official capacity claims is “‘the overwhelming approach that has been taken by members of this Court, as well as the position taken by other courts,’” the Court will dismiss Kennedy’s claims against Gray, Ellerbe, and Nathan.
B rown v. Corrections Corp. of Am. , 603 F. Supp. 2d 73, 79 (D.D.C. 2009) ( quoting Price v. District of Columbia , 545 F. Supp. 2d 89, 94 (D.D.C. 2008)) ; accord Hardy v. District of Columbia , 601 F. Supp. 2d 182 , 186

- 87 (D.D.C. 2009) (“Claims brought against g overnment employees in their official capacity are treated as claims against the employing government and serve no independent purpose when the government is also sued.”)

. B. Whether P laintiff’s PFB Constitutes a D isability Under the ADA Kennedy’s claims under the Americans with Disabilities Act of 1990 ( “ ADA ” ) , the D.C. Human Rights Act (“ DCHRA ”) , the Civil Rights Act of 1871, and the Rehabilitation Act a ll turn on whether his PFB meets the ADA’s definition of disability. 4 See Kapche v. Holder , 677 F.3d 454,
460 (D.C. Cir. 2012) (“In assessing [a Rehabilitation Act] claim, the court employs the same standards used to determine liability under the [ADA] ”) ; Hodges v. District of Columbia , 959 F. Supp. 2d 148, 153 (D.D.C. 2013) (“In analyzing the sufficienc y of [plaintiff’s] DCHRA claims, the

4 T he ADA Amendments Act of 2008 (“ ADAAA ”) does not provide a separate cause of action from the ADA

. Pub. L. No. 110

– 325, § 2(b)(1) (defining the purpose of the ADAAA as “reinstating a broad scope of protection to be available under the ADA ,” not adding new causes of action) (emphasis added); see also Snider v. U.S. Steel

- Fairfield Works Med. Dep’t , No. 2:12

- cv 03508

- AKK, 2013 WL 1278973, at *3 (N.D. Ala. Mar. 26, 2013) (“The ADAAA merely broadens the scope of protection available to plaintiffs under the ADA by redefining particular terms[,] . . . the proper cause of action still exists under the ADA.” ), aff’d , 591 F. App’x 908 (11th Cir. 2015)

. Accordingly, Count 5 (disparate impact under the ADAAA); Count 8 (failure to accommodate under the ADAAA); Count 12 (disparate treatment on the basis of disability under the A DAAA); Count 16 (retaliation for protected activity under the ADAAA ); and Count 27 (improper medical inquiries and examinations under the ADAAA) will be dismissed as redundant to Kennedy’s claims under the ADA.

6Court will apply the standards applicable to claims brought under the ADA.” ) (citing McFadden v. Ballard Spahr Andrews & Ingersoll, LLP , 611 F.3d 1, 5

– 6 (D.C. Cir. 2010) ) ; Chang v. Inst. for Pub.

- Private P ’ ships, Inc. , 846 A.2d 318, 324 (D.C. 2004)) ; Compl. ¶¶ 360, 392

– 93, 429

– 30, 475

– 477 (identifying violations of the ADA as the source of Kennedy’s claims under the Civil Rights Act of 1871 )

. Consequently , these claims s tate a claim on which relief can be grant ed only if PFB is a disability under the ADA

. i. Applicability of the ADA Amendments Act of 2008 Whether PFB is a disability turns on the timing of the events at issue. “ Before 2008, the Supreme Court had narrowly interpreted what constituted a ‘ disabilit y. ’ ” Hodges , 959 F. Supp. 2d
at 153 (citing Toyota Motor Mfg., Ky., Inc. v. Williams , 534 U.S. 184, 195

– 98 (2002) ; Sutton v. United Air Li nes, Inc. , 527 U.S. 471, 482

– 83 (1999) ). T he Supreme Court strictly interpreted the ADA’s “substantially limits” language “ to create a demanding standard for qualifying as disabled” that required the impairment to “prevent[] or severely restrict[] the ind ividual” from engaging in a major life activity and be “permanent or long term.” Toyota , 534 U.S. at 196

– 98. In response to this narrow interpre tation , Congress passed the ADA Amendments Act of 2008 (“ ADAAA ”)

. See Hodges , 959 F. Supp. 2d at 153. The ADAAA “reinstat[e d ] a broad scope of protection to be available under the ADA” and “reject [ ed ] the standards enunciated by the Supreme Court .” Pub. L.
No. 110

– 325, § 2(b) (1)

– (4). T he ADA , as amended , instructs courts to construe the “definition of

‘ disability ’ . . . in favor of broad coverage.” 42 U.S.C. § 12102(4)(A)

. Ne w regulations issued pursuant to the ADAAA similarly provide that “[ t ] he term ‘substantially limits’

. . . is not meant to be a demanding standard. ” 29 C.F.R. § 1630.2(j)(1)(i)

. Yet, the ADAAA did not become effective until January 1, 2009, and it does not have retroactive effect. Lytes v. D.C . Water & Sewer Auth. , 572 F.3d 936, 938

– 39 (D.C. Cir. 2009). Thus, the standard used in this case depends on the timing of FEMS’ alleged unlawful acts

. If “the conduct at issue preceded the ADA Amendments Act of

72008, the pre

- amendment standards to dete rmine liability govern here.” Kapche , 677 F.3d at 460 n.7 (citing Lytes v. D.C. Water & Sewer Auth. , 572 F.3d 936, 939

– 42, (D.C. Cir. 2009)). Kennedy requested an accommodation for his PFB on July 10, 2008. Compl. ¶¶ 124

– 31. After t he request was denied, he filed a charge of discrimination with the EEOC alleging discrimination on the bases of race and disability on or around July 31, 2008. Id. ¶¶ 7

– 8. While he continued to ask for accommodations over the next several years, he repeatedly amended his initial EEOC charge with subsequent events as opposed to filing new c harges

. Id. ¶¶ 9

– 17. In other words, each of his requests and allegations of discrimination emanated from the July 2008 request and denial

. 5 Although the D.C. Circuit has not answered the spe cific question of when a claim

accrues under the 2008 ADA amendments , the Supreme Court has held in the statute of limitations
context that “ [m]ere requests to reconsider

. . . cannot extend the limitations periods applicable to the civil rights laws.” De laware State College v. Ricks , 449 U.S. 250, 261 n.15 (1980) ; see also Long v. Howard Univ. , 512 F. Supp. 2d 1, 17 (D.D.C. 2007) (noting Delaware State College ’s holding is “ well

- settled ”) , aff ’ d , 550 F.3d 21 (D.C. Cir. 2008) ; Martin v. S w. Va

. Gas Co. , 135 F.3d 307, 310 (4t h Cir. 1998) (holding that a claim for disability discrimination “accrues on the date that the alleged unlawful employment practice occurs” and that refusal to reconsider is not a discrete act of discrimination ) (citations omitted ) ; Graehling v. Vill. of Lombard, Ill. , 58 F.3d 295, 297 (7th Cir. 1995) ( “An employer’ s refusal to undo a discriminatory decision is not a fresh act of discrimination.” ) (citation omitted)

. As the Seventh Circuit has explained, “[t]he premise of these

cases is that the employer took one dispositive act [;] . . . this act may lead to injury in the future, but when there is only one wrongful act the claim accrues with the first injury.” Graehling , 58 F.3d 295
at 297 (quotation marks and citation omitted). A p laintiff ’s subsequent requests of a defendant to

5 Kennedy acknowledges that he “has not m ade any claim of a continuing violation” and instead argues that FEMS’ denial of his renewed requests constitute discrete acts. Pl.’s Opp’n at 7.

8reverse its discriminatory decision does not create a new instance of discrimination. See id. ; Coleman v. Cook Cnty. , No. 09 CV 739, 2010 WL 725322, at *5 (N.D. Ill. Feb. 25, 2010) (“Denied requests for acc ommodation do not make prior denials of the same request any less discrete or actionable.”) (citing Mendez v. City of Chicago , No. 03

– cv - 8182, 2004 WL 2980598 , at *4 (N.D. Ill. December 22, 2004) (“[D]enial of a repeat request for previously denied accommo dations does not constitute a new discriminatory act or make the previous denial part of a continuing violation”)). If they did, it would effectively eliminate any time constraints on such claims, as a plaintiff could simply make a new request

— even if he knew it would be denied

— in order to circumvent the non

- retroactivity of the ADA amendments. See Kennedy v. Chem. Waste Mgmt.,
Inc. , 79 F.3d 49, 50

– 51 (7th Cir. 1996). A rgument s to the contrary ha ve failed in the context of statutes of limitation under both Title VII and the ADA, and fail for similar reasons here. Id. Accordingly, FEMS’ allegedly unlawful conduct preceded the effective date of the amended ADA, and thus the pre

- amendment liabi lity standards govern this case. See Kapche , 677 F.3d at 460 n.7 (citing Lytes , 572 F.3d at 939

– 42). ii. Whether PFB Substantially Limits Kennedy Under the Pre

Amendment ADA To prevail on a failure to accommodate claim or a disability discrimination claim , 6 a plaintiff must prove that he had a “disability,” which

— as relevant here

— is defined in the ADA as “a physical or mental impairment that substantially limits one or more major life activities

. ” 42 §

6 For a failure to accommodate claim, a plaintiff must demonstrate that “(1) he had a disability within th e meaning of the ADA; (2) his employer had notice of his disability; (3) he could perform the essential functions of the position with reasonable accommodation; and (4) his employer refused to make such accommodation.” Hodges , F. Supp. 2d at 153

– 54 (citing Gordon v. District of Columbia , 480 F.Supp.2d 112, 115 (D.D.C. 2007)). For a disability discrimination claim, “a plaintiff must allege facts suffic ient to show that (1) he had a disability within the meaning of the ADA; (2) he was qualified for the position with or without reasonable accommodation; and (3) he suffered an adverse employment action because of his disability.” Id. at 154 (citing Duncan v. Wash. Metro. Area Transit Auth. , 240 F.3d 1110, 1114 (D.C. Cir. 2001) ( e n banc )).

912102(1)(A). 7 The D.C. Circuit has “assumed wi thout deciding that working qualifies” as a major life activity for the purpose of analyzing ADA cases

. Adams v. Rice , 531 F.3d 936, 945 (D.C. Cir. 2008). Thus, for Kennedy to prevail, he must show that his PFB “substantially limited” his ability
to work

. Id. As noted above, the Supreme Court strictly interpreted the pre

- amendment ADA’s “substantially limits” language “to create a demanding standard for qualifying as disabled

. ” Toyota , 534 U.S. at 196

– 98. “[T]o be regarded as substantially limited in the major life activity of working, one must be regarded as precluded from more than a particular job.” Murphy v. United Parcel Serv., Inc. , 527 U.S. 516, 523 (1999). Specifically, a plaintiff must allege he is “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes , ” meaning that one “must be precluded from more than one type of job, a specialized job, or a particular job of choice.” Sutton , 527 U.S. at 491

– 92

. In other words, “ [i ]f jobs utilizing an individual ’ s skills (but perhaps not his or her unique t alents) are available” or “if a host of different types of jobs are available,” an individual is not substantially limited in the major life activity of working

. Id. at 49 2. T he EEOC has identified several factors courts should consider in making this de termination, including “the geographical area to which the individual has reasonable access ” and “the number and types of jobs utilizing similar training, knowledge, skills or abilities, within the

7 Kennedy also argues that FEMS regarded him as an individual with a disability under 42 U.S.C. § 1210 2 (3)(A). Pl.’s Supplemental Br. at 5. F or a person to be “regarded as” having a disability , his employer must “mistakenly believe [] that [the] per son has a physical impairment that substantially limits one or more major life activities” or “mistakenly believe [] that an actual, nonlimiting impairment substantially limits one o r more major life activities

. ” Sutton , 527 U.S. at 489

. T his case , however, centers on FEMS’ emphatic insistence that Kennedy was not disabled. See, e.g. , Compl. ¶¶ 119

– 21 , 155

– 59 ( repeated allegations that FEMS officials would not place Kennedy on sick leave for his PFB and insisted that he comply with the clean

- s haven policy, even after receiving medical information for Kennedy’s dermatologist ). Although Kennedy was briefly considered for disability retirement, the Police and Firefighters’ Retirement and Relief Board ultimately determined

— prior to a disability re tirement hearing

— that he was ineligible because he had returned to full duty. Id. ¶¶ 225, 239. Accordingly, the Court concludes that Kennedy has not alleged sufficient facts to establish that he was “regarded as” having a disability by FEMS.

10geographical area, from which the individual is also disq ualified .” Sutton , 527 U.S. at 491

- 492 (citing 29 C

. F

. R

. § 1630.2(j))

. Kennedy has not met this burden. His complaint makes clear that he has been “precluded from

. . . one type of job, a specialized job, or a particular job of choice,” not from a “class of jobs .” Id. Kennedy acknowledges that his PFB did not limit him from serv ing as a FEMS f ire i nspector for over two years

. Compl ¶¶ 35

– 36, 286

– 87. Although he may be not be able to perform his “particular job of choice” as a FEMS firefighter, Sutton , 527 U.S. at 491

– 92, he can still serve in fire prevention jobs generally

. 8 T he D.C. Circuit has not addressed the particular issue of whether firefighting or public safety jobs requiring respirators constitute a “class of jobs” under the pre

amend ment ADA , or whether PFB substantially limits individuals in the public safety field from the major life activity of working

. S ignificant pre - amendment authority in other circuits, however, contradicts Kennedy’s position

. See Stewart v. City of Houston Police Dep ’ t , 372 F. App ’ x 475, 477 (5th Cir. 2010) (holding that African

- American police officers who suffer from PFB and allege discrimination based on a no

- beard policy designed to ensure the safety of officers w hen they wear respirators are not inhibited from work ing in a broad class of jobs since other jobs within the police department are available to them ) (citing Sutton , 527 U.S. at 491) ; Bridges v. City of Bossier , 92 F.3d 329, 336 (5th Cir. 1996) ( holding that “ firefighting jobs . . . is too narrow a field to describe a ‘class of jobs’” ) ; Welsh v. Tulsa , 977 F.2d 1415, 1417 (10th Cir. 1992) (holding that in ability to work as a firefighter does not “substantially limit[] one or more major life activities” ); Daley v.

8 Moreove r, regardless of whether firefighting is a class of jobs, Kennedy has not pled facts that could demonstrate that PFB would prevent him from serving as a firefighter in other jurisdictions in “the geographical area to which the individual has reasonable acc ess.” Id. If other fire departments in the District of Columbia area

— such as those in Maryland or Virginia

— would permit a firefighter to maintain a one

- eighth inch beard, then Kennedy could not be classified as “significantly restricted in the ability to perform” the “class of jobs” of firefighting. Id.

11Koch , 892 F.2d 212, 215 (2d Cir. 1989) ( holding that inability to work in “the particular position of police officer is not a substantial limitation of a major life activity”)

. Kennedy’s argument that firefighter does constitute a class of jobs under the pre - amendment ADA reli es heavily on a n Eleventh Circuit case in which the city of Atlanta ultimately prevailed when firefighters with PFB challeng ed the city fire department’s grooming policy

. Pl.’s Supplemental Br. at 2 (citing Fitzpatrick v. City of Atlanta , 2 F.3d 1112 (11th Cir. 1993) )

. While the court in Fitzpatrick did observe that PFB “substantially limit[s] the firefighters ’ ability to engage in the ‘ major life activity ’ of work on account of the no

- beard rule” and thus the “firefighters would seem to qualify as ” d isabled under the Rehabilitation Act, it made clear that this conclusion is dicta by noting “ it is not necessary for [the court] to rule on that issue

. ” Id. at 1126 (quotation marks omitted) . The court went on explicitly to f ind that it w as unneces sary to rule on the issue of whether the firefighters are disabled because “there exists no reasonable accommodation by which the firefighters with PFB would be able to perform their jobs safely without being clean

- shaven

. ” Id. at 1127. As a result, the Court finds Fitzpatrick unpersuasive.
C. Declaratory and Injunctive Relief Citing a single case from a fellow court in this district, Lewis v. American Foreign Service Association , 846 F. Supp. 77, 82 (D.D.C. 1993), Kennedy maintains that he is entitled to injunctive or declaratory relief. Although Kennedy has already resigned from FEMS and does not seek reinstatement , he asks the Court to declare the grooming policy unlawful an d enjoin FEMS from enforcing it. T he D.C. Cir cuit has frequently held that where a plaintiff seeks declaratory and injunctive relief, “past injuries alone are insufficient to establish standing

. ” Dearth v. Holder , 641 F.3d 499, 501 (D.C. Cir. 2011) (citing Los Angeles v. Lyons , 461 U.S. 95, 105 (198 3) ; O’ Shea v. Littleton , 414 U.S. 488, 495

– 96 (1974)); see also NB v. District of Columbia , 682 F.3d 77, 82 (D.C. Cir. 2012); Arpaio v. Obama , 27 F. Supp. 3d 185, 199

– 200 (D.D.C. 2014) . T he plaintiff instead

12“must show he is suffering an ongoing injury or faces an immediate threat of injury.” Id. Because he has not made that showing , the Court will dismiss Kennedy’s claim for injunctive and declaratory relief

. IV. Conclusion For the foregoing reasons, the Court will grant Defendants’ Partial Motion to Dismiss. The Court will issue an order consistent with this opinion.

CHRISTOPHER R. COOPER United States District Judge
Date: March 20 , 2015

13