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NOT FOR PUBLICATION WITHOUT THE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."

9 A-0326-15T3
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

10 A-0326-15T3
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.

11 A-0326-15T3
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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