A federal judge won't reconsider dismissing two counts of a discrimination lawsuit filed by a former University of Pennsylvania police officer claiming he was fired for not shaving.

U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvania denied plaintiff Joseph Lewis' motion for reconsideration of her earlier ruling, which had granted in part and denied in part Penn's motion to toss the case.

Lewis claimed he was forced by Penn to quit his job for avoiding shaving because of a skin condition common among black men that causes razor bumps. Penn required its officers to be clean-shaven. Lewis claimed he was subjected to discriminatory treatment by supervisors and colleagues, who mocked him for not adhering to the department's grooming policy.

The surviving claims include Title VII disparate treatment, Americans with Disabilities Act discrimination and retaliation, hostile work environment and related claims under the Pennsylvania Human Relations Act and the Pennsylvania Fair Practices Ordinance.

In his motion for reconsideration, Lewis brought up an ADA reasonable accommodations claim that had not appeared in any other brief, Pratter said in her opinion, and he also disputed the dismissal of his constructive discharge claim.

In the ADA claim, Lewis argued that Penn required successive medical examinations, prohibited by law. Pratter said that since the matter was not brought up earlier, she could dismiss it, but she noted, “there is nothing in the record to indicate that Penn Police required successive medical examinations.”

Regarding constructive discharge, Lewis argued that the court placed “too much emphasis” on his recollection of a disciplinary meeting he had with the police chief.

Pratter disagreed.

“Mr. Lewis continues to base his constructive discharge claim on his subjective perceptions of the events in question, instead of case law delineating how a reasonable person would have felt. Given that Mr. Lewis has not cited any law, the court is hard-pressed to conclude it has made a clear error of law,” Pratter said.

In his lawsuit, Lewis said shaving irritated his face due to pseudofolliculitis barbae, commonly known as razor bumps. Lewis claimed he was subjected to discriminatory treatment by supervisors and colleagues, who mocked him for not adhering to the department's grooming policy.

Lewis claimed he was taken off his normal beat and denied vacation time. Additionally, he alleged he was retaliated against for requesting a disability accommodation to not shave. Ultimately, he was placed on paid leave.

In her previous opinion, Pratter said that when looked at as a whole, Lewis' allegations could overcome summary judgment.

“Most of these actions fall into the category of petty slights or minor annoyances and do not qualify as adverse employment actions on their own,” Pratter said of Lewis' ADA claims. “However, for the same reasons as in the discrimination claim, the court finds that a reasonable jury could conclude that Mr. Lewis suffered an adverse employment action when all of the actions are viewed together.”

That was especially so when considering his reassignment, Pratter said.

The department claimed “they were simply moving him to a 'regular beat and schedule that matched most of the other UPPD officers,' which was entirely within their discretion,” Pratter said. “However, courts have found that reassignment can be materially adverse and support a retaliation claim even when there is no reduction in pay.”

Lewis' Title VII disparate impact claim was tossed because he failed to show how the grooming policy acutely affected black officers, according to Pratter.

“While Mr. Lewis claims that three African-American men were burdened by Directive 45 [the grooming standard] and that the reason they were burdened by the policy was a skin condition that predominately affects African-American men, he has not carried his burden in proving that this policy had a disparate impact based on race,” Pratter said.

However, Lewis' disparate treatment claim was allowed to move forward because the department did not directly challenge it.

Timothy Creech of Creech & Creech represents Lewis and Penn is represented by Joe Tucker of the Tucker Law Group.

“Again, we are pleased with Judge Pratter's decision,” Tucker said. “The initial decision was spot on when it dismissed plaintiff's wrongful discharge claim. And we look forward to the trial where we will demonstrate the other claims are equally without merit.”

Creech said there was clear evidence of harassment.

“We believe that the issues the Court decided are clearly questions for the jury and the decision is reversible error,” Creech said. “Nevertheless, there is clear and compelling evidence of harassment, and direct proof that the harassment began at the direction of the University's own Chief of Police. Even with the improper dismissal of some claims, we are confident that Officer Lewis will be vindicated by a jury.”