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There’s no reason a firefighter’s oxygen mask can’t be safety tested on a bearded man, an expert witness testified Monday on the opening day of a trial in which a Muslim Philadelphia firefighter is fighting to keep his facial hair without losing his job. In DeVeaux v. City of Philadelphia, the firefighter, Curtis DeVeaux, had already scored a pretrial victory. Judge Joseph A. Dych, writing in support of a preliminary injunction in DeVeaux’s favor, ruled in July that DeVeaux should not have to shave his beard in order to stay on the job while the case is litigated. DeVeaux, 25, has argued that his religion requires that he not shave, and that his adhering to his beliefs should not cause him to lose his job. Dych’s decision was apparently the first to interpret Pennsylvania’s Religious Freedom Protection Act. He concluded that Fire Department Directive No. 13, which prohibits city firemen from wearing beards, “imposes a substantial burden upon plaintiff’s free exercise of religion by, inter alia, forcing him to chose between his religion and his job.” City Law Department attorneys said they are preparing a motion challenging the constitutionality of the state’s Religious Freedom Protection Act. Presiding at the bench trial that began Monday is Judge James Murray Lynn. Alexander Santora, a retired 40-year veteran of the Fire Department of New York who served as its deputy chief and chief of safety, was the first witness, and only expert, to testify on DeVeaux’s behalf. DeVeaux himself also took the stand that afternoon, saying he had fought fires while sporting a beard and that he would be willing to submit to more stringent face mask safety tests than his clean-shaven colleagues, if it would mean keeping both his beard and his job. This week the city was expected to call to the stand an official from the company that manufactures the facemasks used by the Philadelphia Fire Department, as well as Philadelphia Fire Commissioner Lloyd Ayers. EXPERT WITNESS The city filed a motion in limine to exclude Santora as an expert witness, but Lynn ruled that he was qualified to testify. DeVeaux’s attorney, Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania, did not make an opening statement, and the trial began with testimony from Santora. Santora said that during his career, he was heavily involved with the safety testing of various “self-contained breathing apparatuses,” also called SCBAs. Modern firefighters, he said, carry air tanks on their backs that are connected to the mouths via facemasks. Santora told the court that in his experience, unique facial structures could lead to leakage of the facemask, which is supposed to be airtight. He also said it was possible that a beard, if too long, could also affect a facemask’s ability to seal onto a firefighter’s face. Santora acknowledged that he has not had any experience performing facemask safety tests — also called “fit tests” — on bearded firemen because the FDNY, like the PFD, has a policy against facial hair. Santora said that, in his opinion, there is no reason why a bearded fireman can’t be fit tested and then approved to fight fires despite having facial hair. He also spoke of how he had testified in a recent case in Washington that culminated in that city’s allowing its firefighters to wear beards. Santora did say, during direct and cross examinations, that both the PFD’s facemask manufacturer — Scott Aviation — and a number of governmental organizations — including the federal Occupational Safety and Health Administration — have all publicly stated that oxygen masks shouldn’t be worn by bearded firefighters. But he did stress his opinion that DeVeaux, though bearded, could be evaluated to see whether he is able to perform his duties safely. “I do think a fit test could establish that,” he said. Under cross examination by Stephen Miller of the Law Department, Santora said he had last personally conducted a fit test in the mid-1980s and had last overseen administration of a fit test in the mid-1990s. He also said during cross examination that he had never fit-tested a bearded firefighter, did not know whether facial sweating would affect the fit of a bearded firefighter’s mask worse than that of a clean-shaven one’s and that he didn’t have scientific support for his opinions. Lynn then asked Santora what the impact would be if a firefighter’s mask were to leak while a fire was being battled. Santora said that a leak would cause the firefighter’s air tank to deplete more quickly, leading to an inability to remain in a burning building as long as usual. TENETS OF ISLAM Later in the day, DeVeaux took the stand and told the court that Islam frowns on the practice of men shaving their facial hair. In filing a written request with his commander for permission to keep his beard, he included a letter from his imam offering support for DeVeaux’s interpretations of the tenets of their faith. DeVeaux said that when he showed up for work one day this winter at Engine 44 in West Philadelphia, he was told by department officials that he would have to shave his beard. He refused, and was suspended as of early February. In August, he said, the PFD offered him alternative employment. During the six months in between when he found non-departmental work, he said he made about $9,000, as opposed to the $25,000 or so he would have made during that time as a firefighter. DeVeaux promised that if he were permitted to remain bearded and stay on the job, he would keep it neatly trimmed and would submit to more frequent fit tests than his clean-shaven co-workers. He did say, however, that he would not shave his beard in order to keep his job should he fail a fit test. “I believe that I can have a beard and still be a safe and effective firefighter,” he said. He noted that he had been on the job with a beard for a number of months before he was asked to shave it. “I’ve been in fires with a beard,” he said. The proceedings concluded at the end of direct examination of DeVeaux. Anne Barden of the Law Department, who is Miller’s co-counsel in the matter, told The Legal during a break that the city plans to file a motion arguing that the Religious Freedom Protection Act is unconstitutional. A decision in DeVeaux is not immediately expected, as there is a motion for summary judgment that has yet to be ruled upon.

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