Linda Tisby v. Camden County Correctional Facility

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0326-15T3
A-0344-15T3
LINDA TISBY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, January 18, 2017
v. APPELLATE DIVISION
CAMDEN COUNTY CORRECTIONAL
FACILITY,
Defendant-Respondent.
______________________________
LINDA TISBY,
Plaintiff-Appellant,
v.
CAMDEN COUNTY, CAMDEN COUNTY
DEPARTMENT OF CORRECTIONS and
CAMDEN COUNTY CORRECTIONAL
FACILITY,
Defendants-Respondents.
______________________________
Submitted November 17, 2016 – Decided January 18, 2017
Before Judges Lihotz, O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket Nos. L-
2530-15 and L-2233-15.
Costello & Mains, L.L.C., attorneys for
appellant (Deborah L. Mains, on the brief).
Christopher A. Orlando, Camden County Counsel,
attorney for respondents (Howard L. Goldberg,
First Assistant County Counsel, on the brief).
The opinion of the court was delivered by
WHIPPLE, J.A.D.
Plaintiff, Linda Tisby, appeals from an August 7, 2015
order dismissing the first of her two complaints with prejudice,
and from an August 21, 2015 order dismissing her second
complaint with prejudice. We granted plaintiff's motion to
consolidate these appeals on January 13, 2016. We affirm both
orders.
Plaintiff began working as a corrections officer for
defendant, Camden County Correctional Facility (CCCF), in 2002.
In 2015, plaintiff reverted to the Sunni Muslim faith.1 On May
1, 2015, plaintiff reported to work wearing, for the first time,
a traditional Muslim khimar, a tight fitting head covering,
without a veil.2 Plaintiff's supervisor informed her she was not
in compliance with the uniform policy and could not work unless
1
In the Sunni faith, a person who comes to the Sunni religion
from another religion is said to revert, as opposed to convert.
2
Throughout the pleadings, plaintiff refers to the head
covering she wears as either a khimar or hijab. We will use the
term plaintiff adopted in her brief and refer to the head
covering as a khimar.
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she removed the khimar.3 Plaintiff refused to remove her khimar,
so she was sent home and disciplinary charges were recommended.
Plaintiff refused to remove her khimar again on May 2, May
3, and May 6, 2015. Plaintiff continued refusing to remove her
khimar, stating the khimar was for religious purposes. Each day
plaintiff refused, she was sent home and disciplinary action was
implemented. As a result of the May 6, 2015 events, plaintiff
received a two-day suspension.
In a May 11, 2015 memorandum, the Warden of CCCF advised
plaintiff he considered her "position as a request for an
accommodation under Title VII of the Civil Rights Act, as well
as New Jersey's Law Against Discrimination (LAD)," even though
she had not formally submitted such a request. The Warden
recognized plaintiff's religious beliefs were sincerely held but
rejected her accommodation request because it would "constitute
an undue hardship to the Department to allow an officer to wear
head-coverings or other non-uniform clothing." He informed
3
Defendant's Uniform Grooming Standards provide the following:
G. Hats: Only authorized headgear as
prescribed by prevailing departmental
specifications will be worn. The hat will
be worn well balanced on the head, front,
back and side. The hat will not be crushed
down or altered in any way. Hats will be
worn at all times except when indoors or in
a vehicle.
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plaintiff no disciplinary action would be taken against her if
she came to work in only the permitted uniform. Plaintiff
declined and continued to wear her khimar. She was removed from
her position on May 11, 2015.
Following her removal, plaintiff filed two lawsuits. We
address each in turn. The first complaint (Tisby I) was filed
on June 12, 2015, against Camden County, Camden County
Department of Corrections, and CCCF, seeking damages and
equitable relief for defendants' violations of the LAD, N.J.S.A.
10:5-1 to -49, by failing to "accommodate sincere religious
beliefs." The complaint alleged defendants permitted other
women, including Muslim women and women going through
chemotherapy, to wear head coverings at CCCF.
On July 2, 2015, plaintiff filed a verified complaint in
lieu of prerogative writ seeking immediate reinstatement of her
employment and back pay (Tisby II). Tisby II asserted plaintiff
had been "wrongfully suspended without pay" due to her religious
beliefs, in violation of N.J.S.A. 11A:2-13, and defendants had
failed to reasonably accommodate her religious beliefs pursuant
to the LAD. This complaint did not include any claims other
women were permitted to wear head coverings while employed by
CCCF.
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Defendants moved to dismiss both complaints and provided a
certification from the Warden. The Warden certified the Uniform
Grooming Standards had been in place for over twenty years and
neither religious nor secular head coverings were allowed. He
further certified the uniform policy ensured "the safe and
orderly operation of correctional facilities," as well as "the
very important public value of presenting a unified, neutral and
unbiased force to the public and to the inmates the department
is charged with protecting." He stressed any accommodation to
plaintiff would impose an undue hardship on defendants.
On August 7, 2015, after considering the arguments of both
parties, a trial judge dismissed Tisby II. The judge recognized
plaintiff had a sincere religious belief and the uniform
requirement conflicted with her religious belief. However, the
judge determined accommodating plaintiff's request would impose
an undue hardship on CCCF because of overriding safety concerns,
the potential for concealment of contraband, and the importance
of uniform neutrality. The order dismissed the complaint "with
prejudice, in accordance with Rule 4:6-2(e), or, in the
alternative, that summary judgment be granted to [CCCF], in
accordance with Rule 4:46, dismissing the complaint." On August
21, 2015, a different trial judge dismissed Tisby I with
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prejudice, citing the entire controversy doctrine. These
appeals followed.
I.
We turn our attention to Tisby II because it was decided
first. Plaintiff argues dismissal of Tisby II was in error
because plaintiff's complaint stated a claim upon which relief
could be granted. Alternatively, plaintiff contends dismissal
was in error because discovery had not yet been completed. We
disagree.
When challenging a complaint for failure to state a claim,
R. 4:6-2(e), "the plaintiff is entitled to a liberal
interpretation of its contents and to the benefits of all its
allegations and the most favorable inferences which may be
reasonably drawn from them." Burg v. State, 147 N.J. Super.
316, 319-20 (App. Div. 1977) (quoting Rappaport v. Nichols, 31
N.J. 188, 193 (1959)). Rule 4:6-2 provides if "matters outside
the pleadings are presented to and not excluded by the court,
the motion [for dismissal] shall be treated as one for summary
judgment and disposed of as provided by Rule 4:46."
Additionally, "[a] motion for summary judgment is not premature
merely because discovery has not been completed, unless
plaintiff is able to 'demonstrate with some degree of
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particularity the likelihood that further discovery will supply
the missing elements of the cause of action.'" Badiali v. N.J.
Mfrs. Ins. Group., 220 N.J. 544, 555 (2015) (quoting Wellington
v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.)
certif. denied, 177 N.J. 492 (2003)).
The trial judge did not explicitly specify he was
converting the motion to dismiss into a motion for summary
judgment. However, in evaluating her complaint, the trial judge
relied on records outside of the pleadings, including, the
Warden's certification, defendant's Grooming Standards,
plaintiff's responsive certification, and a photograph of
plaintiff wearing a head covering. We discern no error in the
judge's approach.
The core of plaintiff's complaint is a violation of her
religious rights. Under the LAD, employers cannot impose any
condition upon employees that "would require a person to violate
. . . sincerely held religious practice or religious
observance." N.J.S.A. 10:5-12(q)(1). However, an exception
exists if an employer cannot accommodate "the employee's
religious observance or practice without undue hardship on the
conduct of the employer's business" after putting forth a "bona
fide effort" to accommodate. Ibid. An "undue hardship" is
defined as "an accommodation requiring unreasonable expense or
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difficulty, unreasonable interference with the safe or efficient
operation of the workplace or a violation of a bona fide
seniority system or a violation of any provision of a bona fide
collective bargaining agreement." N.J.S.A. 10:5-12(q)(3)(a).
To analyze claims under the LAD, New Jersey has adopted the
"procedural burden-shifting methodology articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973)." Zive v. Stanley Roberts, Inc., 182 N.J. 436,
447 (2005). The plaintiff must first demonstrate a prima facie
case of employment discrimination. Victor v. State, 203 N.J.
383, 408 (2010). In a religious discrimination case, a prima
facie case includes a showing "(1) plaintiff belongs to a
protected class; (2) she was performing her job at a level that
met her employer's legitimate expectations; (3) she suffered an
adverse employment action; and (4) others not within the
protected class did not suffer similar adverse employment
actions." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super.
145, 167 (App. Div. 2005).
Once a plaintiff establishes a prima facie case, an
"inference of discrimination" is created. Zive, supra, 182 N.J.
at 449. The employer can combat the inference of discrimination
by articulating a "legitimate, nondiscriminatory reason for the
employer's action." Ibid. If the employer can meet its burden,
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the burden again shifts back to the employee to prove the reason
provided by the employer is "merely a pretext for discrimination
and not the true reason for the employment decision." Ibid. A
plaintiff can prove pretext by using either circumstantial or
direct evidence that "discrimination was more likely than not a
motivating or determinative cause of the action" or plaintiff
can discredit the legitimate reason provided by the employer.
El-Sioufi, supra, 382 N.J. Super. at 173. Defendant is entitled
to summary judgment if plaintiff is unsuccessful in this last
step. Zive, supra, 182 N.J. at 456.
It is undisputed plaintiff satisfied her prima facie claim
of discrimination. However, the trial court found defendants'
concerns for the safety, security and neutrality of CCCF, were
legitimate non-discriminatory reasons why allowing plaintiff an
accommodation would cause an undue hardship on defendants.
Relying upon Kelly v. Johnson, 425 U.S. 238 (1975), the trial
judge also reasoned defendants' choice of uniform for its
personnel was entitled to a presumption of validity which had
not been overcome by plaintiff.
Our courts have not previously addressed this issue, but
other courts have. "In a variety of contexts involving
allegations of unlawful discrimination, [the] Court has looked
to federal law as a key source of interpretive authority."
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Grigoletti v. Ortho Pharm, Corp. 118 N.J. 89, 97 (1990). In
EEOC v. Geo Group, Inc., the Equal Employment Opportunity
Commission (EEOC) brought a religious discrimination case on
behalf of Muslim women employees against a private employer
running a corrections facility for refusing to allow an
exception to the prison's dress policy, which precluded them
from wearing Muslim head coverings. 616 F.3d 265, 267 (3d Cir.
2010). Weighing the religious beliefs of the Muslim women
against the employer's safety concerns the court agreed khimars,
as well as other headgear, would present safety concerns in a
prison setting because they could be used as a weapon to choke
someone. Id. at 274-75. In Webb v. City of Philadelphia, a
Philadelphia police officer requested permission to wear a
headscarf while on duty, and the request was denied. 562 F.3d
256, 258 (3d Cir. 2009). The city prevailed arguing any
accommodation would be an undue hardship because the "perception
of its impartiality" of an officer was at stake. Id. at 261.
We do not minimize the religious significance of the khimar
for the women who wear them. We recognize a compelling sense of
religious obligation in the decision to wear a khimar. Ali
Anmoura, Note, Banning the Hijab in Prisons: Violations of
Incarcerated Muslim Women's Right to Free Exercise of Religion,
88 Chi.-Kent L. Rev. 657, 660 (2013). However, the trial judge
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drew appropriate guidance from the logic of GEO and Webb, as
well as the evidence presented, when determining an
accommodation would impose a hardship on defendants. After
weighing the safety concerns, including the safety risk and the
ability to hide contraband in head coverings, as well as the
necessity of uniform neutrality, the trial judge determined
defendants met their burden of establishing accommodation was a
hardship. Moreover, the employer's reasons for denying an
accommodation were not pretextual. Therefore, plaintiff failed
to overcome the finding of a hardship to defendants.4
Consequently, summary judgment was properly entered.
II.
Tisby I was decided subsequently. The second judge
acknowledged plaintiff's factual assertion other women were
permitted to wear head coverings in CCCF, but the judge entered
dismissal based upon the entire controversy doctrine.
Generally, the entire controversy doctrine, codified in Rule
4:30A, "embodies the principle that the adjudication of a legal
4
Plaintiff claims further discovery was necessary to
investigate "[p]ast allowances of employees to wear head
coverings in defendants' facility," but plaintiff never provided
information of any specific instances of employees who were
allowed to wear head coverings. Thus, plaintiff did not satisfy
the Badiali, supra, 220 N.J. at 555, criteria to show how
discovery was necessary to prove an element of her claim.
Therefore, the judge properly rejected this assertion.
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controversy should occur in one litigation in only one court;
accordingly, all parties involved in a litigation should at the
very least present in that proceeding all of their claims and
defenses that are related to the underlying controversy."
Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 605 (2015) (quoting
Highland Lakes Country Club & Cmty. Ass'n v. Nicastro, 201 N.J.
123, 125 (2009)).
The judge found Tisby I was barred by the entire
controversy doctrine because plaintiff should have raised all of
her claims, including the allegation that other women had
previously been allowed to wear head coverings, in one action.
We agree. A review of the two complaints showed only slightly
different allegations arising from the same events and CCCF
should not have to defend against plaintiff's complaint more
than once. Therefore, because we affirm the decision in Tisby
II, we also find Tisby I was properly dismissed based on the
entire controversy doctrine.
Affirmed.
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