IN THE MATTER OF CLINTON BLOOMFIELD, CITY OF NEWARK (NEW JERSEY CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1405-19

IN THE MATTER OF
CLINTON BLOOMFIELD,
CITY OF NEWARK.
_______________________

Submitted April 28, 2021 – Decided May 28, 2021

Before Judges Vernoia and Enright.

On appeal from the New Jersey Civil Service
Commission, Docket No. 2018-2466.

Fusco & Macaluso Partners, LLC, attorneys for
appellant Clinton Bloomfield (Giovanna Giampa, on
the brief).

Chasan Lamparello Mallon & Cappuzzo, PC, attorneys
for respondent City of Newark (Cheyne R. Scott, of
counsel and on the brief; Cindy Nan Vogelman, on the
brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent Civil Service Commission (Debra A. Allen,
Deputy Attorney General, on the statement in lieu of
brief).

PER CURIAM
 Petitioner Clinton Bloomfield appeals from an October 24, 2017 Civil

Service Commission final agency decision upholding his removal from his

conditional employment as a police officer with respondent City of Newark,

Department of Public Safety, based on disciplinary charges related to

petitioner's failure to appear for, and unavailability to appear for, required

assignments and work shifts because of his religious beliefs. Petitioner contends

we should reverse the Commission's determination because: (1) respondent

violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to

-50, by failing to offer petitioner reasonable accommodations to allow him to

observe his sincerely held religious beliefs; (2) the Administrative Law Judge

(ALJ) upheld petitioner's removal under an incorrect legal standard; and (3) the

Commission's determination is arbitrary, capricious, and unreasonable because

it is not supported by substantial credible evidence. Unconvinced, we affirm.

I.

Respondent conditionally hired petitioner as a Newark police officer on

or about July 31, 2017. Petitioner's employment was contingent upon his

successful completion of training at the New Jersey State Police Academy

(academy). He testified he practices Judaism and is a member of The Church of

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God and Saints of Christ. The tenets of his religion do not permit him to work

on the Sabbath—sundown on Friday nights to sundown on Saturday nights.

At all times pertinent to this appeal, the City of Newark and the Fraternal

Order of Police, Newark Lodge No. 12 (FOP) were parties to a collective

negotiations agreement (CNA), which governed the terms and conditions of

employment for Newark police officers and prospective officers, including

petitioner.1 The CNA mandates a "4/2 schedule" for officers, meaning officers

are required to work four days on and two days off each week, "which is no t

limited to just having Monday through Friday schedules or weekends off." The

morning shifts for "[t]he 4/2 schedules . . . can range from 7:00 [a.m.] to 3:00

[p.m.], [or] 8:00 [a.m.] to 4:00 [p.m.]"; the afternoon schedules range "from 3:00

[p.m.] to 11:00 [p.m.] or 4:00 [p.m.] to 12:00 [a.m.]"; and "the first

shifts . . . would be 11:00 [p.m.] until 7:00 [a.m.] or 12:00 [a.m.] until 8:00

[a.m.]"

Lieutenant James Byrd of the Newark Police Department (department) is

a twenty-six-year veteran of the department and is assigned as the Executive

Officer and Associate Director of the Essex County Police Academy. He

1
The FOP is the collective negotiations "representati[ve] for . . . police officers
in the City of Newark."
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testified that approximately twenty to thirty officers are assigned on each of the

department's shifts. He also testified "each of those shifts [would absolutely]

require [an officer] to work on a Friday night or a Saturday before sunset." He

explained that when the department needs to fill a shift or does not have enough

officers on a given shift and "no one volunteers" to work, the department

chooses officers to work "mandatory . . . overtime."

The CNA also includes a "traditional" seniority system amongst officers,

which, among other things, governs the department's grant of officers' requests

to use vacation days. The CNA provides, "Vacation shall be chosen by all police

officers . . . in order of seniority in rank of their unit," and "each employee shall

be entitled to designate up to five . . . vacation days as single[-]use vacation

days[,] which shall be taken within that calendar year with the approval of the

Commanding Officer."

Prior to the commencement of his training at the academy, petitioner

signed an "Acknowledgment of Work Schedule" form and a "Statement of

Understanding." By executing the "Acknowledgment of Work Schedule,"

petitioner recognized and agreed his duties as a police officer required his

availability to work on all "days, afternoons, nights, weekends[,] and/or holidays

as required by" respondent; and by executing the "Statement of Understanding,"

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petitioner confirmed his understanding of respondent's employment policies,

including its training and graduation requirements for officers.

Petitioner first requested an accommodation based on his religious beliefs

in late November or early December 2016, prior to his conditional hire by

respondent. Petitioner requested that the Commission allow him to reschedule

his Entry Level Law Enforcement Exam—originally scheduled on a Saturday—

because he was not "able to participate in Saturday testing for religious reasons."

The Commission requested a letter from petitioner's "rabbi or other official from

[his] temple verifying [his] request for non-Saturday testing." Petitioner

provided the letter, and the Commission granted his request. 2

Petitioner next requested an accommodation based on his religious beliefs

in response to an order from respondent directing "all . . . recruits [to] respond

to Atlantic Uniform [(AU)] . . . either on Saturday," October 21, 2017,

"or . . . Saturday," October 28, 2017, "between" 10 a.m. and 6 p.m. Petitioner

testified he was unable to attend the ordered October 21 fitting because it

conflicted with religious services at his church, which he attends each Saturday

2
The letter is not included in the record on appeal.

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from "10:00 or 11:00 [a.m.]" until "the sun sets."3 Petitioner explained he went

to AU the next day and the owner informed him if he returned the following

Saturday, the owner would ensure he was the first one fitted, and "it would only

take five minutes." Petitioner arrived on Saturday, October 28, at approximately

9 a.m., and was fitted before attending services. 4

Petitioner first requested an accommodation based on his religious beliefs

from respondent in early December 2017, in response to a directive ordering all

recruits to attend mandatory academy graduation training on Saturday,

December 9, from 6:45 a.m. to 1:00 p.m. On December 3, petitioner sent an

Administrative Submission to Captain Donald M. Robertella, Commander of the

Police Training Division, acknowledging the training was "deemed mandatory"

but "request[ing]" to be "excuse[d]" from the training because he was unable to

work on the Sabbath due to his religious practice. Petitioner sent a second

Administrative Submission to Robertella that day "request[ing]" to be excused

3
Petitioner advised the beginning of the services is "depend[ent] on [whether it
is] daylight savings time."
4
Petitioner testified he was not "violating any of the laws of [his] church" by
attending the fitting, because his religion only prevents working on the Sabbath,
and the fitting was "just . . . putting on a jacket," which is not considered
"working." He advised "[i]f the . . . fitting was to . . . interfere with the service,"
he "would [not] . . . have been able to go."

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from work from January 4 through January 10, 2018, because working on those

dates would conflict with his "annual religious observation" of the "Holy

Convocation."

In addition to his Administrative Submissions, petitioner also sent

Robertella: (1) a letter dated June 28, 2017 from Elder Clement Bloomfield—

the pastor of petitioner's church—confirming petitioner's religion did not permit

him to work "from [sunset] on Friday until [sunset] on Saturday"; and (2) a

December 2017 letter from pastor Bloomfield stating petitioner's religious

beliefs "required" him to be "actively involved in full worship" in observance of

the "Holy Convocation" from January 4 to January 10, 2018, and he was not

permitted "to work . . . during these days." 5 Although petitioner did not inform

respondent at this time, petitioner later testified he was also unvailable to work

during Passover—"[a]round April 13 . . . to April 20"—but that he would "just

take it as vacation."

On December 7, 2017, petitioner emailed Robertella confirming petitioner

"underst[ood] . . . the meeting on [December 9, 2017 was] deemed mandatory,"

and reiterating that he would "not be able to attend" due to his "religious

5
The parties stipulated before the ALJ that Elder Clement Bloomfield is
petitioner's father.
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practice." On December 8, 2017, Robertella denied petitioner's requests,

advising petitioner via email:

We have made every effort to accommodate your
request, [but] unfortunately we cannot excuse you.

As a [r]ecruit, you must complete ALL mandatory
training to graduate from the [a]cademy. Mandatory
training includes the meeting on Saturday, December 9,
2017.

When you accepted employment with the Newark
Police Division, you acknowledged in writing . . . that
you understood and accepted that as a Newark [p]olice
[o]fficer you are required to be available for a [twenty-
four-]hour [seven] day a week work schedule and that
your work schedule will include, "working days,
afternoons, nights, weekends, and/or holidays as
required by [respondent]." You signed the
Acknowledgement of Work Schedule on May 25,
2017[,] and a copy was made a part of your Candidate
Investigation File.

At the time that you signed the Acknowledgement of
Work Schedule, you failed to notify the Newark Police
Candidate Investigation [p]ersonnel, the Newark Police
Division [t]raining [s]taff, and the . . . [a]cademy of
your request for excusal from duty. Moreover, you
participated in the . . . [a]cademy each Friday from
August 4 through to December 1 and were released
from duty after sundown on Fridays on many occasions.

[Respondent] has a duty to protect the safety and
wellbeing of the public [twenty-four] hours a day
[seven] days a week.

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In his reply to Robertella's email, petitioner stated that if he was not granted the

accommodations, he did "not see [him]self having a future with" respondent.

Petitioner did not attend the mandatory graduation training on December

9, 2017. Two days later, petitioner sent an Administrative Submission to

Robertella explaining he was absent from mandatory graduation training "based

on [his] religious practice." The next day, respondent issued a "[p]reliminary

[n]otice of [d]isciplinary [a]ction" suspending petitioner without pay and

charging him with: "[c]hronic [i]nefficiency or [i]ncompetency," claiming "his

unwillingness to work [the department's] mandatory schedule clearly

demonstrates an unwillingness and/or inability to meet, obtain or produce results

necessary for a satisfactory performance"; and failure to "[o]be[y] . . . [o]rders"

and "[a]bsence [w]ithout [l]eave" because he did not appear for, or participate

in, the mandatory graduation training despite Robertella's order.6 On December

13, 2017, Byrd recommended a departmental hearing on the charges.

Respondent held a hearing on January 23, 2018. Petitioner appeared with

counsel, waived his right to the hearing, and indicated he intended to appeal

6
Of the three charges against petitioner, the notice only specifies "[c]hronic
[i]nefficiency or [i]ncompetency . . . shall . . . subject [an employee] to
dismissal."

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respondent's decision to the Commission. Respondent issued a "[f]inal [n]otice

of [d]isciplinary [a]ction," finding petitioner "guilty" on all charges. The notice

further stated petitioner was "remov[ed]" from his position effective December

12, 2017.7

Petitioner appealed to the Commission, and the matter was referred to the

Office of Administrative Law as a contested case. An ALJ conducted a two-day

trial. Petitioner argued "he did not violate the department's rules and regulations

because he requested accommodations for his religious beliefs," and he

"claim[ed] religious discrimination based on [respondent's] failure to

accommodate" in violation of the LAD. Respondent argued petitioner "violated

its rules and regulations," and "the . . . accommodation[s petitioner] requested

would cause [respondent] undue hardship."

Respondent called two witnesses during its case at the hearing: Byrd, and

Newark Police Department Deputy Chief Arthur Jorge. Byrd testified that, after

receiving petitioner's requests for accommodations, he considered the

circumstances of the requests, including the department's required "schedule and

rotation," the CNA's seniority system and requirements, and the potential use of

7
The notice incorrectly states the effective date of petitioner's removal was
December 12, 2018.
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petitioner's vacation time to accommodate his requests. Byrd explained granting

the accommodations would be "in conflict with the seniority provisions of the

[CNA]"; "would violate [the CNA] with regard to single[-]use [vacation] days";

and would otherwise "lead to staffing shortages," compromising respondent's

operational efficiency and posing a "safety" concern "for the public [and] . . . the

officers." He reasoned "there are numerous tasks that come along within a day

that are [unforeseen]," and "[m]inimal staffing is [only] based on what

[respondent] can foresee." He testified respondent "require[s] . . . not

only . . . minimal staff[,] but [it needs] to have additional people staffed or the

people who have their assignments remain and call in for their position so

[respondent does not] have to backtrack for the other positions that are absent."

He explained that granting petitioner's "accommodation would produce an

undue hardship on" respondent.

Jorge is a twenty-one-year veteran of the department and serves as Deputy

Chief of Operations, a position that entails overseeing all of the department's

operations, including "proper staffing" of officers. Jorge testified that to ensure

respondent is prepared to address "[c]ritical incidents [that] happen throughout

the [c]ity on a[ny] given shift," officers are often required to work overtime due

to sickness, vacation, training, and other mandatory requirements, in addition to

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their regular shifts. He testified the department requires "sufficient [manpower]

to stabilize a neighborhood based on what happens," and there "are things that

unfortunately [respondent] just can't predict." He explained Newark is different

from other cities because "[i]t's a very dynamic city," and "[a] lot of population

comes in and out . . . . A lot of tourists, a lot of workers." He also testified the

city often has "rallies, . . . demonstrations, . . . raids," and "multiple festivals

that are going on . . . [with] thousands of people in a small geographical grid[,]

and these areas have to be secured," requiring respondent "to accommodate

according to need."

Like Byrd, Jorge testified granting petitioner's requested accommodations

"would lead to operational inefficiency." When asked "why one individual['s

accommodations] would make a difference," Jorge explained respondent "lost

1/3" of its officers since a large layoff in 2010, "and the attrition rate is still

continuing." He testified respondent is "losing officers faster than [it]

can . . . hire" them due to retirement and disability. According to Jorge, as a

result, "when an officer . . . call[s] out sick[, respondent has] to backfill [the

officer's shift with] overtime" because respondent does not "have extra officers

available to just plop into these areas [to] save on overtime." He also explained

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officers are often required to work beyond the end of their scheduled shifts due

to sickness, vacation, and other mandatory requirements within the department.

During the presentation of his case, petitioner testified to the sincerity of

his religious beliefs and that respondent's mandatory work schedule conflicted

with those beliefs. He argued granting his requested accommodations would

impose merely a "[de minimis]" burden on respondent. When asked why he

signed the "Acknowledgment of Work Schedule" stating his duties as a police

officer required that he be available for work on all "days, afternoons, nights,

weekends[,] and/or holidays as required by" respondent, petitioner explained :

Because I can work seven days of the week. . . . The
only thing that I asked was that on Friday[s] I could
either do the 7:00 [a.m.] to 3:00 [p.m.] tour or the 8:00
[a.m.] to 4:00 [p.m.], . . . and then in the overnight on
Saturday I could do either the 11:00 [p.m.] to 7:00
[a.m.] or the 12:00 [a.m.] to 8:00 [a.m.] In those time
frames it doesn't conflict with the Sabbath and so that's
seven days . . . and I can work every holiday.

Petitioner acknowledged that when he executed the form, he "understood" the

department is "a 24/7 operation," but he stated he believed if he submitted his

requests and documentation to respondent, it would accommodate him.

Petitioner also called the president of the Newark FOP, Detective James

Stewart, Jr., who testified not "everybody is ordered to work" during rallies and

festivals, but rather the scheduling for these events is first made on a "volunteer

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basis." He explained an officer could work multiple days if he or she

volunteered, but "[n]obody would be ordered to work multiple days of that

event." Further, he stated that even if the department was short on personnel for

a given event, officers required to work mandatory overtime are able to pick

their own shifts, "whether it would be Friday, Saturday[,] or Sunday." He also

testified an officer who is unable to work an assigned shift can "swap shifts"

with other officers, and officers typically do not get held over from one shift to

another. Finally, he testified that although an officer working a shift not

specified in the CNA constitutes a violation of the agreement, the FOP would

not "make an issue of" the violation, and it would not "stand in the way of

a[n] . . . [o]fficer coming on a job that has an obstacle because of a schedule."

He asserted the FOP may work out a different schedule in certain circumstances,

and it had done so previously within different units of respondent.8

In a September 27, 2019 initial decision, the ALJ recommended upholding

respondent's termination of petitioner's employment. However, rather than

8
Petitioner also called Charesse Forbes, who is a member of the same church
as petitioner. Forbes testified concerning the church's tenet of honoring the
Sabbath from sunset on Friday to sunset on Saturday and that no work may be
performed during that period. Petitioner also called Brian Funchess, who is
petitioner's manager at petitioner's employment as a security supervisor at a
hospital. Funchess described petitioner's duties and explained the hospital has
never required petitioner to work during the Sabbath.
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characterizing respondent's action as a disciplinary "removal," the ALJ deemed

it a "release[] . . . at the end of [petitioner's] working test period."

The ALJ determined petitioner "was extremely sincere in his testimony

regarding the importance of his religious beliefs." She also found the following:

(1) petitioner's "ability to use vacation days is restricted by the [CNA], where

he would only be able to rely on this method five times"; (2) due to the CNA's

seniority provision, respondent "would be unable to accommodate [petitioner]'s

requests for a week off for the Holy Convocation and another week off for

Passover if senior officers requested those days off"; (3) petitioner's

"proposition to shift swap is unreliable due to provisions set forth in the [CNA]

and the frequency of transfers of the officers"; (4) "[e]ven if [petitioner] found

an officer to consistently swap shifts with, [respondent] would be burdened to

find a replacement if that officer called out sick, took vacation time, or was

transferred to another shift"; and (5) "due to the[] dynamics [of the

city], . . . every officer counts[,] and the absence of [petitioner] could negatively

affect [respondent]'s operations."

The ALJ was also "persuaded that [respondent]'s policies are reasonable,

and that [respondent proved], by a preponderance of the credible evidence, that

[it] will be unable to accommodate [petitioner] based upon his religious beliefs

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and for the safety of its officers." The ALJ then concluded petitioner did not

sustain his burden of demonstrating respondent "released him at the end of his

working test period" "in bad faith." See N.J.A.C. 4A:2-4.3(b).

Petitioner filed exceptions to the ALJ's decision with the Commission. In

its final decision, the Commission noted "the ALJ inexplicably treated this

matter as a release at the end of the working test period appeal pursuant to

N.J.A.C. 4A:2-4.1 [to -4.3]," see N.J.S.A. 11A:2-6(a)(4), instead of as a

disciplinary "[r]emoval," see N.J.S.A. 11A:2-6(a)(1). The Commission found

petitioner, "as a [p]olice [o]fficer who had not yet fully completed his academy

training, had not yet even started his working test period." The Commission

noted "[t]he implication of [the] error [was] potentially significant" due to the

different burdens of proof associated with the two disciplinary actions, see

N.J.S.A. 11A:2-21, but it determined the "error [was] not fatal" because the ALJ

also found respondent "satisfied its burden of proof" for disciplinary removal by

proving its "policies are reasonable, . . . [that it] will be unable to accommodate

[petitioner] based upon his religious beliefs and for the safety of its officers,"

and that "the proffered disciplinary charges have been sustained by a

preponderance of the evidence," see ibid.; see also In re Polk, 90 N.J. 550, 560

(1982) ("[T]he usual burden of proof for establishing claims before state

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agencies in contested administrative adjudications is a fair preponderance of the

evidence.").

The Commission accepted the ALJ's factual findings and, despite the

ALJ's treatment of the matter "as a release at the end of the working test period,"

accepted the ALJ's conclusions. "Accordingly, the Commission reject[ed] any

findings or conclusions in the initial decision relating to [the] matter being

considered a working test period appeal"; found respondent "prove[d], by a

preponderance of the evidence, that [it] will be unable to accommodate

[petitioner] based upon his religious beliefs and for the safety of its officers";

and "uph[eld] . . . [petitioner]'s removal." 9 This appeal followed.

II.

"Our scope of review of an administrative agency's final determination is

limited." In re Adoption of Amends. to Ne., Upper Raritan, Sussex Cnty., 435

N.J. Super. 571, 582 (App. Div. 2014). When reviewing an administrative

agency's decision, our limited standard of review is guided by three inquiries:

(1) [W]hether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains

9
An administrative "agency head may reject or modify [an ALJ's] findings of
fact, conclusions of law[,] or interpretations of agency policy in [its] decision,"
as long as he or she "state[s] clearly the reasons for doing so." N.J.S.A. 52:14B-
10(c).
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 substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.

[Blanchard v. N.J. Dep't of Corr., 461 N.J. Super. 231,
238 (App. Div. 2019) (alteration in original) (quoting
In re Carter, 191 N.J. 474, 482 (2007)).]

The burden of demonstrating that a final agency decision should be

reversed falls on the party challenging the decision. Adoption of Amends., 435

N.J. Super. at 582. "[W]here there is substantial evidence in the record to

support more than one regulatory conclusion, it is the agency's choice which

governs," id. at 583 (alteration in original) (quoting Murray v. State Health

Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001)), and we "may not

substitute [our] . . . judgment for the agency's, even though [we] might have

reached a different result," In re Stallworth, 208 N.J. 182, 194 (2011) (quoting

Carter, 191 N.J. at 483). However, we are "in no way bound by an

agency's . . . determination of a strictly legal issue." K.K. v. Div. of Med.

Assistance & Health Servs., 453 N.J. Super. 157, 161 (App. Div. 2018) (quoting

L.A. v. Bd. of Educ. of Trenton, 221 N.J. 192, 204 (2015)).

Petitioner first claims the Commission's decision should be reversed

because the ALJ mistakenly analyzed the case as a termination at the end of a

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18
working test period instead of as a disciplinary removal. Petitioner correctly

argues those separate and different actions involve different burdens of proof.

In a disciplinary removal case, "the employer shall have the burden of proof[,]

while in [cases of termination at the end of an employee's working test period],

the employee shall have the burden of proof." N.J.S.A. 11A:2-21; see also

N.J.S.A. 11A:2-6(a)(1) to (4); N.J.A.C. 4A:2-4.3(b) (providing in cases of

termination at the conclusion of the working test period, the burden falls on the

employee to prove the employer's "action was in bad faith"); Polk, 90 N.J. at

560 (explaining an appointing authority has the burden of establishing the truth

of disciplinary charges by a preponderance of the evidence for the removal of a

civil service employee). We agree with petitioner's claim the ALJ erred by

finding respondent terminated petitioner's employment at the end of his working

test period, rather than considering respondent's action as the disciplinary

removal respondent acknowledges it was.

We are not persuaded the ALJ's error requires a reversal of the

Commission's decision. The Commission recognized the ALJ's error but did not

repeat the error in rendering its final decision. The Commission instead

"considered the record and the ALJ's initial decision," made "an independent

evaluation of the record," accepted the ALJ's findings of fact, and applied the

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19
burden of proof applicable to a disciplinary removal. The Commission then

determined respondent "satisfied its burden of proof" by establishing its

"policies are reasonable, . . . [that it] will be unable to accommodate [petitioner]

based upon his religious beliefs and for the safety of its officers," and "that the

proffered disciplinary charges have been sustained by a preponderance of the

evidence." Based on those findings, the Commission determined respondent

sustained its burden of proof of establishing the disciplinary charges against

petitioner.

We review the Commission's final decision on appeal, see Silviera-

Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 136-37 (2016); R. 2:2-

3(a)(2) (providing, in pertinent part, "appeals may be taken to the Appellate

Division as of right . . . to review final decisions or actions of any state

administrative agency" (emphasis added)), and the record establishes the

Commission applied the correct burden of proof standard in making its final

determination, and properly placed the burden on respondent, see N.J.S.A.

11A:2-21. The ALJ's initial error therefore provides no basis to reverse the

Commission's final decision.

Petitioner also argues the Commission's determination respondent was

"unable to accommodate" petitioner and its resulting decision to uphold

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petitioner's termination are not supported by credible record evidence. He

further contends the decision should be reversed because he presented a prima

facie case of religious discrimination.

"Under the LAD, employers cannot impose any condition upon employees

that 'would require a person to violate . . . sincerely held religious practice or

religious observance,'" Tisby v. Camden Cnty. Corr. Facility, 448 N.J. Super.

241, 248 (App. Div. 2017) (alteration in original) (quoting N.J.S.A. 10:5-

12(q)(1)), "including but not limited to the observance of any particular day or

days or any portion thereof as a Sabbath or other holy day in accordance with

the requirements of the religion or religious belief," N.J.S.A. 10:5 -12(q)(1).

"However, an exception exists if an employer cannot [reasonably] 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." 10 Tisby, 448 N.J. Super. at 248 (quoting N.J.S.A. 10:5-

12(q)(1)). "An 'undue hardship' is defined as 'an accommodation requiring

unreasonable expense or difficulty, unreasonable interference with the safe or

10
"An accommodation is reasonable if it 'eliminates the conflict between
employment requirements and religious practices by allowing the individual to
observe fully.'" EEOC v. Geo Grp., Inc., 616 F.3d 265, 291 (3d Cir. 2010)
(quoting Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986)).

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21
efficient operation of the workplace or a violation of a bona fide seniority system

or a violation of any provision of a bona fide [CNA].'" Ibid. (quoting N.J.S.A.

10:5-12(q)(3)(a)); see also Trans World Airlines, Inc. v. Hardison, 432 U.S. 63,

79 (1977) ("Without a clear and express indication from Congress, we cannot

agree . . . that an agreed-upon seniority system [in a CNA] must give way when

necessary to accommodate religious observances.").

"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 [(1973)].'"11 Tisby, 448 N.J. Super. at 248 (quoting

Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005)). Under this analytical

paradigm, petitioner has the burden to "first demonstrate a prima facie case of

employment discrimination." Ibid. To establish a prima facie case of religious

discrimination, petitioner must demonstrate: "(1) [he] belongs to a protected

11
"In LAD cases, we 'frequently look to federal precedent . . . as "a key source
of interpretive authority,"' unless 'that law sharply diverges from prior authority
construing the LAD [or does not] further[] the objectives of the LAD [or]
comport[] with our prior holdings.'" Crisitello v. St. Theresa Sch., 465 N.J.
Super. 223, 228 n.2 (App. Div. 2020) (second, third, fourth, and fifth alterations
in original) (quoting Aguas v. State, 220 N.J. 494, 510 n.4 (2015)); see also
Turner v. Wong, 363 N.J. Super. 186, 210 (App. Div. 2003) (finding "[i]n
interpreting the LAD, the federal law has consistently been considered for
guidance").

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class; (2) []he was performing [his] job at a level that met [his] employer's

legitimate expectations; (3) []he suffered an adverse employment action; and (4)

others not within the protected class did not suffer similar adverse employment

actions."12 Ibid. (quoting El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super.

145, 167 (App. Div. 2005)).

"Once a [petitioner] establishes a prima facie case [of discrimination], an

'inference of discrimination' is created." Ibid. (quoting Zive, 182 N.J. at

449). The burden then shifts to the employer to "combat the inference

of discrimination by articulating a 'legitimate, nondiscriminatory reason for the

employer's action.'" Id. at 248-49 (quoting Zive, 182 N.J. at 449). Where a

12
Petitioner claims that to support a prima facie case of "failure to accommodate
based on religious beliefs, [an] employee must show[:] . . . [(1)] they hold a
sincere religious belief that conflicts with a job requirement, . . . [(2)] they
informed their employer of the conflict, and . . . [(3)] they were disciplined for
failing to comply with the conflicting requirement." To support this proposition,
petitioner cites to Webb v. City of Philadelphia, 562 F.3d 256, 259 (3rd Cir.
2009). However, the standard proffered by petitioner differs from the standard
we articulated in Tisby v. Camden County Correctional Facility, 448 N.J. Super.
241, 248 (App. Div. 2017) and El-Sioufi v. St. Peter's University Hospital, 382
N.J. Super. 145, 167 (App. Div. 2005)—two cases concerning alleged failures
to accommodate employees' religious beliefs—in which we found the standard
to prove a prima facie claim of discrimination based on a failure to accommodate
is the same standard we use to analyze all employment-related religious
discrimination claims under the LAD. Because the standard articulated in Webb
does not "comport with [these] prior holdings," we do not apply it here.
Crisitello, 465 N.J. Super. at 228 n.2 (quoting Aguas, 220 N.J. at 510 n.4).
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petitioner alleges a failure to accommodate, the employer must provide a

"legitimate[,] non-discriminatory reason[] why" it "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. (quoting N.J.S.A. 10:5-12(q)(1)).

"If the employer can meet its burden, 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.'" Id. at 249

(quoting Zive, 182 N.J. at 449). "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 [the] plaintiff can discredit

the legitimate reason provided by the employer." Ibid. (quoting El-Sioufi, 382

N.J. Super. at 173).

Here, it is undisputed petitioner established a prima facie case of religious

discrimination. Petitioner's arguments focus on the second prong of the

McDonnell Douglas paradigm. He contends respondent failed to satisfy its

burden of demonstrating it could not reasonably accommodate his religious

beliefs without undue hardship after making a bona fide effort to accommodate.

In other words, petitioner contends the Commission erred because the record

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lacks substantial credible evidence supporting a determination respondent made

a bona fide effort to accommodate petitioner's religious beliefs and that

respondent will suffer an undue hardship if it grants petitioner's requested

accommodations. See id. at 248; see also N.J.S.A. 10:5-12(q)(1). In his brief

on appeal, petitioner asserts that "not only did [respondent] not

offer . . . reasonable accommodation[s], . . . [it] did not make a good faith effort

to accommodate him."

We reject petitioner's argument because there is substantial credible

evidence supporting the Commission's findings. See Adoption of Amends., 435

N.J. Super. at 582 (quoting J.D. ex rel. D.D.H. v. N.J. Div. of Developmental

Disabilities, 329 N.J. Super. 516, 521 (App. Div. 2000)). Petitioner

acknowledges "Byrd testified as to the lengths [respondent] went to attempt to

accommodate [petitioner]." Byrd considered the department's required

"schedule and rotation"; examined the CNA's seniority system; reviewed

respondent's overtime policies and requirements; and assessed the potential for

petitioner to use vacation time to accommodate his requests for the purpose of

determining whether petitioner's religious beliefs and practices could be

accommodated.

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 Petitioner argues respondent did not establish a bona fide effort to

accommodate him because "at no point was [he] actually privy to [respondent's

efforts] or even asked whether an accommodation would be amenable to him

and his religious practices." Petitioner contends respondent "did not even give

[him] the opportunity to be accommodated," and that respondent "could

have . . . put [him] on a probationary period, or 'working test period' to see how

his need for an accommodation would work." He argues "no individual has ever

been accommodated by the [d]epartment for religious reasons, [and

respondent]'s denial of [his] accommodation is based purely on conjecture or

speculation." See Miller v. Port Auth. of N.Y. & N.J., 351 F. Supp. 3d 762, 789

(D.N.J. 2018) ("An analysis of undue hardship may not be based on mere

speculation or conjecture.").

We are unpersuaded by petitioner's contentions. Petitioner requested

accommodations that were specific, well-defined, and known to respondent. He

sent two letters unequivocally advising respondent he: (1) could not work during

the Sabbath; (2) could not attend mandatory graduation practice because it fell

on the Sabbath; and (3) could not work the week of January 4 to 10, 2018, due

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to his religion. 13 Petitioner offers no reason respondent's failure to request his

participation in its efforts to determine whether it could grant the requested

accommodations caused him any prejudice or requires a finding respondent's

efforts, as described in detail by Byrd, were not bona fide. Again, the

accommodation petitioner required was clear and unequivocal. Indeed, he

informed respondent that if the accommodation he requested was not granted—

which did not yet include his inability to work during the week of Passover—he

did "not see [him]self having a future with" respondent. Petitioner does not

suggest there were any other reasonable accommodations—other than those he

specifically requested, and respondent considered and rejected—that respondent

may have provided without imposing the undue hardship described by Byrd and

Jorge. See EEOC v. Geo Group, Inc., 616 F.3d 265, 291 (3d Cir. 2010) (defining

a reasonable accommodation as one which "eliminates the conflict between

13
We do not address respondent's denial of petitioner's request to be excused
from mandatory graduation training, nor do we address the charges of failure to
"[o]be[y] . . . [o]rders" and "[a]bsence [w]ithout [l]eave" issued to petitioner
subsequent to his absence from the training. Petitioner's disciplinary charge of
"[c]hronic [i]nefficiency or [i]ncompetency" due to his purported
"unwillingness to work [the department's] mandatory schedule . . . [and
resulting] unwillingness and/or inability to meet, obtain[,] or produce results
necessary for a satisfactory performance" subjected him to termination if
sustained, and respondent did not tether that charge to petitioner's absence from
graduation training. See N.J.A.C. 4A:2-2.3(a).
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employment requirements and religious practices by allowing the individual to

observe fully" (quoting Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70

(1986))).

Petitioner also claims respondent "did not . . . give [him] the opportunity

to be accommodated" by "put[ting him] on a probationary period, or 'working

test period' to see how his need for an accommodation would work," and

"[s]ince no individual has ever been accommodated by the [d]epartment for

religious reasons," Byrd's and Jorge's testimony concerning the safety and

efficiency concerns associated with granting petitioner's accommodations

constitutes "pure[] . . . conjecture or speculation." See Miller, 351 F. Supp. 3d

at 789. We disagree.

"[A]n employer is not required 'to wait until it [feels] the effects' of [a]

proposed accommodation before determining its reasonableness." Ibid. (second

alteration in original) (quoting EEOC v. Firestone Fibers & Textiles Co., 515

F.3d 307, 317 (4th Cir. 2008)). Rather, "[e]mployers must be given leeway to

plan their business operations and possible accommodative options in advance,

relying on an accommodation's predictable consequences along the way." Ibid.

(quoting Firestone Fibers, 515 F.3d at 317). Thus, the fact respondent did not

grant, or "test," the accommodation petitioner requested did not preclude

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respondent from reasonably determining it could not provide the necessary

accommodations without undue hardship.

Further, respondent's determination that provision of the requested

accommodation would cause undue hardship was not based on either speculation

or conjecture. It was instead founded on the testimony, which the ALJ and

Commission found credible, of two experienced officers charged with

overseeing various operations within the department. Byrd and Jorge testified:

(1) concerning the unique nature and needs of the city; (2) that, due to the

circumstances extant in the city, the department "require[s] . . . not

only . . . minimal staff[,] but [also] to have additional people staffed"; (3) that

respondent is "losing officers faster than [it] can actually hire" and it thus does

not "have extra officers available" to cover the shifts petitioner requested off;

and (4) that granting petitioner's accommodations would therefore "lead to" the

department suffering from further "staffing shortages."

Petitioner requested to be excused for multiple weeks throughout the year

when respondent otherwise mandates all officers be available to ensure it is

prepared to handle whatever public safety issues may arise in the city. Byrd and

Jorge explained the department's staffing needs, the existence of staffing

shortages, the manner in which filling staffing needs is governed and limited by

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the CNA, and the need for officers to be available to work at all times due to the

normal and unique safety concerns presented daily in Newark. In addition, they

explained that permitting petitioner to use vacation time to accommodate his

religious observance "would violate" the CNA's seniority and vacation

provisions.14 See N.J.S.A. 10:5-12(q)(3)(a) (explaining an accommodation

which results in the violation of a CNA provision constitutes an undue hardship).

Their testimony is also wholly consistent with the Acknowledgement of

Work Schedule petitioner signed prior to the commencement of his training and

14
The CNA states, "Vacation shall be chosen by all police officers . . . in order
of seniority in rank of their unit." The evidence established that accommodating
petitioner by allowing him to utilize vacation days would permit him to select
his vacation days each year prior to more senior officers. See Trans World
Airlines, 432 U.S. at 79 ("[A]n agreed-upon seniority system [does not] give
way when necessary to accommodate religious observances."). Further, the
evidence showed respondent could not permit, in a manner consistent with the
requirements of the CNA, petitioner's use of vacation days for his observance of
the Sabbath and the other religious events for which he sought to be absent from
duty. Stewart's testimony the FOP would not "make an issue" of the violation
of the CNA that would result if respondent accommodated petitioner simply
confirms respondent's position it could not accommodate petitioner without
violating the CNA's seniority and vacation provisions. Moreover, Stewart's
testimony did not modify the CNA and is not contractually binding. Because
allowing petitioner to utilize vacation days to accommodate his religious beliefs
conflicted with the seniority system and vacation-day provisions in the "bona
fide" CNA, respondent could not grant this accommodation absent "undue
hardship." Tisby, 448 N.J. Super. at 248 (quoting N.J.S.A. 10:5-12(q)(3)(a));
see also Trans World Airlines, 432 U.S. at 79.

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any request for an accommodation. As noted, the form explained that Newark

police officers must be available to work all shifts on each day of the year to

provide police services to the city. 15 Thus, Byrd's and Jorge's testimony

addressed the "predictable consequences" of granting petitioner's requested

accommodation, which the Commission could properly consider and "rely[] on"

to determine respondent could not grant the accommodation without undue

hardship. Miller, 351 F. Supp. 3d at 789 (quoting Firestone Fibers, 515 F.3d at

317).

In Geo Group, the Equal Employment Opportunity Commission (EEOC)

filed a complaint alleging religious discrimination on behalf of female Muslim

employees against the defendant employer—the operator of a corrections

facility—due to the defendant's alleged "fail[ure] to accommodate the

[employees] by providing them an exception to the prison's dress policy that

otherwise precluded them from wearing Muslim head coverings called khimars

at work." 616 F.3d at 267. The defendant argued, based on the testimony of the

facility's warden and deputy warden, that allowing employees to wear khimars

15
Respondent does not argue petitioner's unavailability to work all shifts, at all
times, on each day of the year constitutes an undue hardship because it "result[s]
in the inability of [petitioner] to perform the essential functions of the position
in which he . . . is employed." N.J.S.A. 10:5-12(q)(3)(c). We therefore do not
address the issue.
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at the facility would present safety concerns because the khimars could

potentially be used as a weapon to "strangle" someone or to smuggle

"contraband." Id. at 270, 273-75. Although the defendant offered no direct

evidence of khimars being used this way in the past, the Third Circuit relied on

the wardens' testimony about the potential safety threats posed by the possible

uses of khimars and found that "[e]ven [if] khimars present only a small threat

of the asserted dangers, they do present a threat which is something . . . [the

defendant] is entitled to attempt to prevent." Id. at 274. The court concluded

the defendant satisfied its burden to establish that granting the accommodation

would raise safety concerns and impose an undue hardship. Id. at 274-75.

Because the EEOC did not establish the defendant's assertion of an undue

hardship was pretextual, the court affirmed the trial court's grant of summary

judgment to the defendant.16 Id. at 275, 277.

In Tisby, we considered a similar claim against a defendant corrections

facility by a Muslim employee alleging the defendant failed to accommodate her

by not allowing her to wear a khimar in violation of the defendant's dress policy.

16
The majority in Geo Group did not expressly address the issue of pretext, but,
pursuant to the McDonnell Douglas standard, a finding of pretext would have
sustained the EEOC's burden and precluded the court's affirmance of summary
judgment to the defendant. 411 U.S. at 804.
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448 N.J. Super. at 244-46. The defendant moved for summary judgment "and

provided a certification from the [w]arden" asserting in part that the defendant's

"uniform policy ensured 'the safe and orderly operation of [its] facilit[y],'" and

"any accommodation to [the] plaintiff would impose an undue hardship on [the]

defendant[]." Id. at 246. We endorsed the Third Circuit's finding in Geo Group,

and agreed, "[a]fter 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," that the "defendant[] met [its] burden of establishing [the]

accommodation was a hardship." Id. at 250. Because the plaintiff did not prove

"the [defendant]'s reasons for denying an accommodation were . . . pretextual,"

we concluded the "plaintiff failed to overcome the finding of a hardship to [the]

defendant[]," and that therefore the grant of summary judgment to the defendant

"was proper[]." Ibid.

The circumstances presented by petitioner's request for an accommodation

are similar to those in Tisby and Geo Group. Here, the ALJ accepted as credible

the testimony of two veteran Newark police officers with knowledge and

experience concerning the department's operations and requirements, who

testified the department's workforce has been "decimat[ed]" in recent years by

"attrition," "retirement[,] and disability"; it is still "losing officers faster than

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[it] can . . . hire"; it does not "have extra officers available" to cover vacant

shifts without requiring overtime; and granting petitioner's accommodation

would exacerbate the department's "staffing shortages," posing a "safety"

concern "for the public [and] . . . the officers" and compromising respondent's

operational efficiency. Based on that testimony, the ALJ found respondent

established it was "unable to accommodate [petitioner] based upon his religious

beliefs and for the safety of its officers." The Commission agreed.

In accord with Tisby and Geo Group, we agree the testimony of Byrd and

Jorge concerning the department's safety and operational concerns, and the

manner in which accommodating petitioner's religious beliefs will violate the

CNA, satisfies respondent's "burden of establishing [the] accommodation was a

hardship." Tisby, 448 N.J. Super. at 250; see also Geo Grp., 616 F.3d at 274-

75. Therefore, contrary to petitioner's assertion, there is substantial credible

evidence supporting the Commission's finding that respondent made a bona fide

effort to accommodate petitioner's religious beliefs and respondent

demonstrated that providing an accommodation would constitute an undue

hardship under N.J.S.A. 10:5-12(q)(3)(a). Respondent clearly satisfied its

burden under the second prong of the McDonnell Douglas paradigm. See Tisby,

448 N.J. Super. at 248-49.

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 The burden then shifted to petitioner to establish respondent's assertion of

an undue hardship was pretextual "and not the true reason for the employment

decision." Id. at 249 (quoting Zive, 182 N.J. at 449). Petitioner does not point

to any evidence establishing "discrimination was more likely than not [the]

motivating . . . cause" of respondent's action or discrediting respondent's

"legitimate, non[-]discriminatory reason" for its action—its inability to provide

the accommodation without undue hardship after making a bona fide effort to

provide the accommodation. See id. at 248-49 (quoting Zive, 182 N.J. at 449);

see also N.J.S.A. 10:5-12(q)(3)(a). In fact, petitioner does not argue on appeal

the Commission erred by concluding he failed to present evidence establishing

pretext under the third prong of the McDonnell Douglas standard. See Tisby,

448 N.J. Super. at 249. Our independent review of the record confirms petitioner

failed to sustain that burden.

Petitioner fails to demonstrate the Commission's decision is inconsistent

with applicable law, unsupported by substantial credible evidence, or based on

a misapplication of legislative policies to the facts. See Blanchard, 461 N.J.

Super. at 238 (quoting Carter, 191 N.J. at 482). As we have explained,

petitioner's appeal is founded on a claim the Commission erred by failing to find

his termination constituted unlawful discrimination based on his religious

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beliefs and respondent's refusal to provide an accommodation for those beliefs.

We find no merit to petitioner's contention because, as noted, respondent

presented sufficient credible evidence establishing it made a bona fide attempt

to accommodate petitioner and it would suffer an undue hardship by doing so.

Petitioner failed to demonstrate respondent's reasons for its termination of his

employment were a pretext for discrimination and, for that reason, petitioner's

religious discrimination claim fails. See Tisby, 448 N.J. Super. at 250; see also

N.J.S.A. 10:5-12(q)(3)(a). We therefore discern no basis to reverse the

Commission's decision upholding respondent's termination of petitioner's

conditional employment for the cited disciplinary reasons.

To the extent we have not expressly addressed any of petitioner's

remaining arguments, we find they lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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